Opinion
Case No. 3:19-cv-01095-SB
02-28-2020
ANDREW CORRADO AND KELLY CORRADO, Plaintiffs, v. CITY OF PORTLAND, a municipal subdivision of the State of Oregon, JOHN DOE OFFICERS 1 AND 2, Defendants, And CITY OF PORTLAND, Third-Party Plaintiff, v. JONATHAN T. RANCE, Third-Party Defendant.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Third-party defendant Jonathan Rance ("Rance"), a self-represented litigant, filed a negligence counterclaim against third-party plaintiff City of Portland ("City") arising from events that occurred on July 25, 2017. (ECF No. 19.) However, Rance did not plead compliance with the Oregon Tort Claims Act ("OCTA"), which requires a plaintiff to give notice to a public body of an alleged tort "within 180 days after the alleged loss or injury." OR. REV. STAT. § 30.275(2)(b). Therefore, the Court recommends that the district judge grant the City's motion to dismiss Rance's counterclaim for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). See Stull v. Maurry, No. 3:13-cv-02211-KI, 2014 WL 183899, at *5 (D. Or. Jan. 14, 2014) ("Under the OTCA, a plaintiff must give notice of his tort claims within 180 days after the alleged loss or injury, and a complaint that fails to allege notice was given in accordance with the OTCA is subject to dismissal."); Denucci v. Henningsen, 248 Or. App. 59, 66 (2012) ("Failure to give timely notice of claim is fatal to a plaintiff's tort claim against a public body.").
The district judge should dismiss the counterclaim without prejudice and provide Rance an opportunity to amend the counterclaim if he can plead in good faith that he timely provided notice of his tort claim to the City. If Rance attempts to amend his counterclaim against the City, he must also include factual allegations specific to the City, as opposed to plaintiffs Andrew and Kelly Corrado. --------
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 28th day of February, 2020.
/s/_________
STACIE F. BECKERMAN
United States Magistrate Judge