Opinion
CV. No. 98-669-HA
December 15, 2000
Attorneys for Plaintiff:
Steven P. Wandro CeCilia Ibson Wagner Wandro Associates, P.C. Des Moines, Iowa
Attorneys for Defendants:
David Slader Portland, Oregon
David A. Ernst John T. Kaempf Bullivant, Houser Bailey Portland, Oregon
AMENDED OPINION AND ORDER
This Opinion and Order has been amended to correct errata; no substantive changes have been made.
This case has a complicated history. On August 31, 1998, defendant Philip Morris Incorporated ("PMI") moved to dismiss because plaintiff failed to timely and properly effect service of process, rendering plaintiff's claims against PMI barred by the applicable statute of limitations. This motion was granted on January 11, 1999. Plaintiff then moved to reconsider this ruling. After consideration of plaintiff's arguments and an additional affidavit from plaintiff, this court granted the motion to reconsider on August 19, 1999. Plaintiff subsequently sought and received permission to filed an amended complaint. Discovery commenced, and on August 18, 2000, defendants moved for summary judgment. Oral argument on this motion was heard in court on October 30, 2000. For the following reasons, the motion for summary judgment (Doc. # 87-1) is granted.
BACKGROUND
1. Initial Dismissal
Plaintiff alleges that she suffered injury after a cigarette lighter associated with defendants exploded on June 3, 1996. In this diversity action asserting claims under state law for strict product liability, negligence, and breach of warranty, Oregon's two-year statute of limitations applies. See ORS 30.905(2).
Plaintiff's Complaint was filed on June 1, 1998. Plaintiff mailed a Summons and Complaint to the Oregon Secretary of State on July 13, 1998, which this court determined to be a nullity. Plaintiff also served defendants' registered agent in Virginia via certified mail on July 31, 1998. Service was received and notice occurred on August 4, 1998. Plaintiff also mailed a Summons and Complaint to defendants' principal place of business in New York by certified mail on July 31, 1998. This was received and signed for on August 5, 1998. Under ORCP 7D(2)(d)(ii), service was not complete until the date on which defendants' representatives signed the certified mailings acknowledging receipt of the Summons and Complaint. Defendants first received and signed for these mailings on August 4, 1998, more than 60 days after plaintiff's Complaint was filed, and more than two years after plaintiff's claims accrued. This court initially ruled that under the mandates of ORS 12.020, plaintiff's service failed to "relate back" to the filing of the Complaint, and the claims against the Philip Morris defendants were initially dismissed as untimely.
2. Reconsideration
Plaintiff successfully moved for reconsideration of the dismissal on grounds that the statute of limitations should be tolled in cases in which the plaintiff is unaware of the identity of the tortfeasor. See Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966) (an action does not accrue until the plaintiff obtains knowledge, or reasonably should have obtained knowledge of the tort committed upon her person by defendant). See also Gaston v. Parsons, 318 Or. 247, 256, 864 P.2d 1319 (1994):
[T]he statute of limitations begins to run when the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements [of legally cognizable harm] (harm, causation, and tortious conduct) exists.
We emphasize that this is an objective test. In most cases, the inquiry will concern what a plaintiff should have known in the exercise of reasonable care.
* * * The discovery rule does not protect those who sleep on their rights, but only those who, in exercising the diligence expected of a reasonable person, are unaware that they have suffered legally cognizable harm.
This court granted the motion for reconsideration after plaintiff submitted an affidavit stating that she was confined to bed for one week after losing the sight in her right eye, but that as soon as she was able, she began to investigate the source of the cigarette lighter. Plaintiff averred then that the lighter's source could not be determined from the fragments remaining after the explosion.
According to her first attorney's affidavit, plaintiff met with him on July 11, 1996. In earlier briefing supporting the motion for reconsideration, plaintiff indicated that all she knew on that date was that she had been injured in early June, 1996, after a lighter her son obtained from a convenience store in Portland exploded. This court relied upon her affidavit to conclude that she apparently had no information about the source of the lighter, and was uncertain about the date of the explosion. Plaintiff indicated that she provided to her attorney pieces of the exploded lighter, as well as promotional materials and similar lighters she had collected, on August 29, 1998. The attorney found the words "Philip Morris Inc." in small type on the promotional material.
This court concluded that plaintiff's motion for reconsideration set forth convincing grounds for reversal of this court's prior ruling because PMI's alleged involvement was not inherently discoverable at the time of plaintiff's injury, and because plaintiff acted reasonably in becoming aware of PMI's possible tortious conduct within three months of being blinded in her right eye. Upon reconsideration, the subsequent service upon PMI was, therefore, deemed timely and the Order of Dismissal was vacated under the authority provided by Fed.R.Civ.P. 60(b), Subsection 1, allowing relief for reasons of mistake, inadvertence, surprise, or excusable neglect, and Subsection 6, for any other reason that justifies relief.
3. Pending Motion for Summary Judgment
Defendants now move for summary judgment on the basis of "new and additional facts" obtained through the deposition of plaintiff conducted on July 3, 2000, after the reconsideration was granted. Plaintiff's subsequent deposition on July 3, 2000 reveals that:
1. Her son "always" smokes Basic brand cigarettes, and he was the one who purchased the promotional package of cigarettes that contained the lighter;
2. Her son was home and smoking Basic cigarettes on the day of the accident;
3. In 1996 Basic packs identified Philip Morris on the sides of the packs;
4. Plaintiff saw the words "Your Basic Lighter" on the outside of the lighter before it exploded, and could see those same words on the pieces of the lighter that she collected after the explosion;
5. Plaintiff acknowledged that upon arriving at the emergency room, she knew she had been hurt because the lighter exploded;
6. Plaintiff saw the words "Your Basic Lighter" and "Djeep" and "made in France" on the lighter fragments the day after the accident; and
7. Plaintiff had photographs taken of her injuries within two weeks of the accident, in case litigation ensued.
STANDARDS
1. For summary judgmentSummary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. Assuming that there has been sufficient time for discovery, summary judgment should be entered against a "party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.
Special rules of construction apply to evaluating summary judgment motions: 1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; 2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party; and 3) the court must assume the truth of direct evidence set forth by the nonmoving party if it conflicts with direct evidence produced by the moving party. T.W. Electrical Service v. Pacific Electrical Contractors, 809 F.2d 626, 630 (9th Cir. 1987). When different ultimate inferences can be reached, summary judgment is not appropriate. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).
The issue of material fact required by Rule 56 to entitle a party to proceed to trial need not be resolved conclusively in favor of the party asserting its existence; all that is required is sufficient evidence supporting the claimed factual dispute to require a jury or judge to resolve the parties' differing versions of the truth at trial. Id. At this stage of the litigation, the judge does not weigh conflicting evidence or make credibility determinations. These determinations are the province of the fact finder at trial. Id., see also Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir. 1996) (on a motion for summary judgment, the court is not to weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial).
2. Standards for allowing second motion for summary judgment
In reviewing this case's history, it is apparent that the decision to grant reconsideration was influenced in large measure upon plaintiff's submission of supporting affidavits. See Opinion and Order of August 18, 1999, p. 8. Having considered these additional evidentiary materials, the ruling on defendants' dismissal motion became, in fact, a summary judgment decision pursuant to Fed.R.Civ.P. 56. See Lucas v. Department of Corrections, 66 F.3d 245, 248 (9th Cir. 1995); Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989) (construing defendant's motion to dismiss as a motion for summary judgment because district court considered plaintiff's affidavit); Salveson v. Western States Bankcard Ass'n, 731 F.2d 1423, 1430 (9th Cir. 1984) (typically, court will exercise discretion to convert a motion to dismiss into a motion for summary judgment when evidentiary materials outside the pleadings are received). Notice is not required for the conversion from motion to dismiss to motion for summary judgment, but the court must give the parties a reasonable opportunity to present material that would be pertinent under the summary judgment motion. See Rule 12(b); In re Rothery, 143 F.3d 546, 549 (9th Cir. 1998); see also Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).
Here, of course, it was plaintiff who filed evidentiary materials outside of the pleadings in support of her motion to reconsider, which essentially supplemented her opposition to defendants' motion to dismiss. She filed her motion and supporting memorandum for reconsideration on March 10, 1999. Defendants filed an opposition on March 16, 1999, and then, by Order of the court, were given until May 26, 1999, to file supplemental briefs in opposition. See Minute Order issued May 11, 1999. By Order issued on June 17, 1999, defendants were given an additional extension of until July 2, 1999, to respond specifically to plaintiff's arguments for reconsideration that were supported by her supplemental affidavits. Accordingly, defendants were "fairly apprised" that this court was looking beyond the pleadings and was considering plaintiff's additional affidavits, and defendants were provided fair opportunity to consider and respond to those affidavits. See Grove v. Mead School Dist. No. 354, 753 F.2d 1528, 1533 (9th Cir. 1985) (party is "fairly appraised" that the court will in fact be deciding a summary judgment motion when court accepts matters outside the pleadings and invites consideration of the matters); see also In re Harris Pine Mills, 44 F.3d 1431, 1439 (9th Cir. 1995) (a court may grant summary judgment without notice if the losing party has had a "full and fair opportunity to ventilate the issues involved in the motion").
This court notes that the extended briefing schedule regarding plaintiff's motion to reconsider was due to defendants' contention that a constitutional challenge to Oregon's tolling statute, ORS 12.150, should be certified. Defendants' motion to certify (doc. # 47-1) was later denied, but defendants renew their argument that the tolling statute is unconstitutional. Plaintiff does not rely upon ORS 12.150 in her opposition to defendants' new motion for summary judgment, and this court finds that Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (1988), in which the Supreme Court struck down an Ohio statute that is similar to ORS 12.150 as violative of the Commerce Clause, casts serious doubt upon the constitutionality of ORS 12.150.
In sum, when this court reconsidered defendants' motion to dismiss, it did so after accepting evidentiary matters outside of the pleadings. The consideration of those materials converted defendants' motion into one for summary judgment. Defendants now assert what amounts to a second motion for summary judgment, relying upon the same grounds as those presented in defendants' previous motion for dismissal — that plaintiff's service was untimely.
Plaintiff contends that because defendants' previous motion was denied, the law of the case doctrine bars this court from re-examining the statute of limitations issue. Following this court's reconsideration, additional discovery was pursued and completed, including the deposition of plaintiff. Under these circumstances, the law of the case doctrine does not prohibit the court from considering what amounts to a second motion for summary judgment. See Nudo v. McNeil, 702 F. Supp. 825, 826-27 (D.Or. 1988) (defendants permitted to re-assert a statute of limitations defense in a motion for summary judgment after obtaining plaintiff's deposition following an unsuccessful motion to dismiss also relying upon the statute of limitations defense); Hanna Boys Center v. Miller, 853 F.2d 682, 686 (9th Cir. 1988) (law of case doctrine is not inexorable command); United States v. Mills, 810 F.2d 907, 909 (9th Cir.) cert. denied, 484 U.S. 832 (1987) (law of the case doctrine is discretionary not mandatory).
ANALYSIS
Defendants have submitted evidence from plaintiff's deposition demonstrating that she knew, or should have known, about the existence of her claims much sooner than she suggested in her affidavit filed in support of her motion for reconsideration. Defendants argue that even under the "discovery rule" relied upon in granting the motion to reconsider, the plaintiff is barred from bringing a claim after the running of the statute of limitations if the plaintiff should have known of his or her claims in the exercise of due diligence. See Bibeau v. Pacific Northwest Research Foundation, Inc., 188 F.3d 1105, 1108 (9th Cir. 1999) ("There is a twist to the discovery rule [under Oregon and federal law]: The plaintiff must be diligent is discovering the critical facts"). This court agrees.
In granting plaintiff's motion for reconsideration, this court relied upon the Oregon Supreme Court's reasoning in Gaston:
The discovery rule is designed to give plaintiffs a reasonable opportunity to become aware of their claim. Actual knowledge that each element is present is not required. On the other hand, a mere suspicion is insufficient to begin the statute of limitations to run. We believe that a quantum of awareness between the two extremes is contemplated by the statute. Therefore, the statute of limitations begins to run when the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists.
Gaston, 318 Or. at 255-56, 864 P.2d at 1323-24.
Plaintiff had a reasonable opportunity to become aware of her claim soon after her injury. There is no dispute that plaintiff's deposition testimony establishes that she obtained the facts necessary for identifying PMI and Djeep within days of the accident, and was aware — or reasonably should have been aware — of the substantial possibility that the three elements for her suit, harm, causation, and tortious conduct, all existed at least as early as mid-July, 1998. "[T]he statute of limitations in a negligence action does not begin to run until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the identity of the tortfeasor." Gehrke v. Crafco, Inc., 143 Or. App. 517, 521, 923 P.2d 1333, 1335 (1996), rev. denied, 324 Or. 560 (1997), citing Duyck v. Tualatin Valley Irrigation Dist., 304 Or. 151, 742 P.2d 1176 (1987).
In Gehrke, the plaintiff argued that she exercised reasonable diligence in attempting to discover the correct identity of the party responsible for her injuries. The Oregon Court of Appeals rejected the argument, reasoning that "[i]n this case, the identity of the tortfeasor was inherently discoverable when plaintiff was injured. At that time, she knew that the store, regardless of its legal identity, had caused her alleged injury." Id. at 143 Or. App. 523, 923 P.2d at 1336-37. The date that the plaintiff claimed to have actually discovered the source of her injury was inapplicable because the "plaintiff knew or should have known that she had been wronged by the possessor of the store at the time of the fall, even though she did not know whom the possessor was." Id. at 143 Or. App. 523, 923 P.2d at 1336.
The same is true in this case. Plaintiff knew the lighter had come from her son's cigarettes, and that her son smoked the Basic brand. She knew as she arrived at the hospital that the lighter had injured her. She could read "YOUR Basic LIGHTER," "Djeep," and "Made in France" on the shards of the lighter she collected soon after the explosion. Clearly, the identities of the distributor and manufacturer were "inherently discoverable" at the time of plaintiff's accident and defendants are entitled to summary judgment.
Alternatively, defendants seek summary judgment on grounds that the statute of limitations should begin to run on the date that a person retains an attorney related to the dispute at issue. See DeJonge v. Mutual of Enumclaw, 90 Or. App. 533, 537, 752 P.2d 1277, rev. denied, 306 Or. 155 (1988). In DeJonge, the court of appeals relied upon Bollom v. Fireman's Fund Ins. Co., 302 Or. 343, 730 P.2d 542 (1986), which held that the plaintiffs' statute of limitations began to run when they retained and paid an attorney to protect their interests. Id. at 302 Or. 353.
Accordingly, the DeJonge court ruled that when plaintiffs hired an attorney to "protect their interests" as a result of being aware that their insurance company failed to obtain all the insurance necessary as they requested, the statute of limitations began to run. "The statute began to run no later than January, 1984, when they had notice that the insurance procured by [their agent] was inadequate. . . and they retained the first attorney." DeJonge, 90 Or. App. at 537, 752 P.2d at 1279-80.
The facts here are similar. Plaintiff visited her attorney on July 11, 1996, possessing the knowledge detailed above about the distributor and manufacturer of the lighter that injured her. The plaintiffs in DeJonge were aware of the identity of their prospective defendant (their agent) and the degree of that defendant's negligence (he failed to acquire sufficient insurance for them, as they had requested). Plaintiff here reasonably should have known the identity of her prospective defendants when she met with counsel, and knew without question that any suit would involve allegations pertaining to a defective lighter. When plaintiff consulted her attorney, he possessed the information necessary for determining whom to sue. Defendants here are also entitled to summary judgment on the alternative grounds that the statute of limitations began running on July 11, 1996, when plaintiff consulted an attorney while possessing all the information necessary for identifying her prospective defendants and their possibly tortious conduct.
Plaintiff now claims to be unable to recall the date she met with her attorney, but her counsel acknowledged the date of July 11, 1996 in an earlier affidavit, and this court accepts that date.
Finally, plaintiff argues that defendants have acted in bad faith to delay plaintiff's ability to identify the proper defendants in this litigation. Defendants assert correctly that since the claims against PMI are barred by the statute of limitations under the facts of the case, plaintiff's claims against any other defendant — none of whom was served prior to PMI's service — must also be barred. Similarly, plaintiff's allegations of bad faith and estoppel are without merit, since any alleged misconduct or bad faith on the part of defendants would have occurred, if at all, after the statute of limitations on plaintiff's had run.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment (doc. 87-1) is GRANTED in favor of all defendants. This case is dismissed. Any other pending motions are denied as moot.
IT IS SO ORDERED.