Opinion
3:20-cv-01370-AC
03-10-2021
LEXINGTON INSURANCE COMPANY AND METRO, Plaintiffs, v. INSINKERATOR, A DIVISION OF EMERSON ELECTRIC CO., Defendant.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Lexington Insurance Company (“Lexington”) and its insured Metro (collectively “Plaintiffs”) bring this subrogation action against Defendant InSinkErator, a division of Emerson Electric Co. (“InSinkErator”). Plaintiffs allege that InSinkErator is liable for water damage caused by a defect in a water heater manufactured by InSinkErator. Plaintiffs previously asserted the identical claims in Lexington Ins. Co. v. InSinkErator, Case No. 3:19-cv-00250-AC (the “initial lawsuit”). On August 5, 2020, the court entered a Judgment dismissing the initial lawsuit because Plaintiffs failed to commence it within the applicable two-year statute of limitations. On August 13, 2020, Plaintiffs filed Lexington v. InSinkErator, Case No. 3:20-cv-01730-SB (the “instant action”), contending that Oregon's savings statute, Or. Rev. Stat. § 12.20, permits them to refile the instant action within the 180 days of dismissal. (Compl., ECF No. 1.) Now before the court is InSinkErator's Motion to Dismiss (ECF No. 6), pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) and Request for Judicial Notice (ECF No. 20). For the following reasons, the court recommends InSinkErator's motions be granted.
Factual and Procedural Background
The instant action is premised on the same underlying facts as the initial lawsuit. Metro, a public agency operating in the Portland Metropolitan area, owned a commercial property at 600 Grand Avenue, Portland, Oregon (the “Property”), in which an InSinkErator water heater (the “Water Heater”) was installed. (Compl. ¶¶ 2, 3, 12.) On November 24, 2016, a welded seam on the Water Heater failed, causing severe water damage at the Property. (Id. ¶ 12.) Metro filed a claim with Lexington seeking indemnification and reimbursement for damages pursuant to a Lexington insurance policy. (Id. ¶ 15.)
On November 9, 2018, Plaintiffs filed its initial lawsuit against InSinkErator in state court, and on November 15, 2018, filed an amended complaint adding InSinkErator's parent company. (Id. ¶ 5.) Plaintiffs alleged the damage to the Property was caused by a manufacturing defect in InSinkErator's Water Heater, and they asserted claims for negligence, breach of implied warranty, and strict liability under state law. (Id. ¶¶ 12, 18-38.) InSinkErator was served with the Amended Complaint on January 23, 2019. (F&R at 2, Case No. 19-250, ECF No. 29.) On February 19, 2020, InSinkErator removed the case to federal court, citing jurisdiction based on the diversity of the parties. (Compl. ¶ 6.)
On February 26, 2019, InSinkErator moved to dismiss the initial lawsuit on two timeliness grounds: (1) Plaintiffs failed to timely commence the lawsuit within two years as prescribed for products liability actions under Or. Rev. Stat. § 30.905(1); and (2) Plaintiffs failed to timely “commence” the action by serving the complaint within sixty days of filing, as Or. Rev. Stat. § 12.020 requires. (Mot. to Dismiss, 3:19-cv-00250, ECF No. 4.) On December 12, 2019, the court issued a Findings and Recommendation granting InSinkErator's motion. (F&R, Case No. 3:19-cv-00250, ECF No. 29.) On May 27, 2020, U.S. District Judge Marco A. Hernandez adopted the Findings and Recommendation in relevant part and dismissed the initial lawsuit. (Order, Case No. 3:13-cv-00250, ECF No. 34.) A Judgment dismissing the case was entered on August 5, 2020. (Judgment, Case No. 3:19-cv-00250, ECF No. 35.)
On August 13, 2020, Lexington filed this lawsuit, specifically invoking Oregon's savings statute, Or. Rev. Stat. § 12.220, and the court's jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332. (Compl. ¶ 8.) The case initially was assigned to U.S. Magistrate Judge Stacie F. Beckerman. On October 26, 2020, the case was reassigned to this court. (Notice of Reassignment, ECF No. 22.)
InSinkErator moves to dismiss the case, arguing that Plaintiffs' claims are untimely and that Or. Rev. Stat. § 12.220 does not apply.
Legal Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 12(b)(6) allows for motions to dismiss for “failure to state a claim upon which relief can be granted.” When considering a motion to dismiss pursuant to Rule 12(b)(6), the court must accept all factual allegations of the complaint as true and construe the pleadings in light most favorable to the plaintiff. Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001) (internal quotations omitted).
If the facts alleged in a complaint indicate that the claim is barred by the applicable statute of limitations, a party may move to dismiss pursuant to Rule 12(b)(6) for failure to state a claim. Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). When ruling on a such a motion, “the court may dismiss only if ‘the running of the statute is apparent on the face of the complaint.'” Confederated Tribes and Bands of Yakama Nation v. Airgas USA, LLC, 435 F.Supp.3d 1103, 1120 (D. Or. 2019) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)); Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010).
Preliminary Procedural Motion
In support of its Motion to Dismiss, InSinkErator filed a Request for Judicial Notice in which it asks the court to take judicial notice of a Summary of Testimony of Professor Maury Holland, who testified on behalf of the Oregon Law Commission in support of Oregon House Bill 2284, that would amend Or. Rev. Stat. § 12.220. (Def.'s Mot. Judicial Notice Ex. 1, ECF No. 20.) Generally, a court may not consider material beyond the complaint when deciding a Rule 12(b)(6) motion. Fed.R.Civ.P. 12(d) (explaining that if court considers other materials, the motion is converted into a motion for summary judgment under Rule 56); see Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam)). However, a court may consider materials beyond the pleadings under two exceptions without converting the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment: judicial notice and incorporation by reference. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018); Lee, 250 F.3d at 688 (discussing that a court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment). Judicial notice under Federal Rule of Evidence 201 permits a court to take judicial notice of undisputed facts in matters of public record. Khoja, 899 F.3d at 999. Courts readily take judicial notice of “undisputed matters of public record” and “documents on file in federal or state courts.” Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). Additionally, numerous courts have determined that “[l]egislative history is properly a subject of judicial notice.” Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012) (citing Chaker v. Crogan, 428 F.3d 1215, 1223 n.8 (9th Cir. 2005)); see also Johnson v. Pluralsight, LLC, 728 Fed.Appx. 674, 676 n.3 (9th Cir. 2018) (taking judicial notice of legislative history to determine whether legislature intended to create a private cause of action under statute).
Plaintiffs oppose the court taking judicial notice of Professor Holland's testimony. They contend that the testimony is simply Professor Holland's opinion, relates to legislative facts, and is not relevant to the issues presented in the current motion. (Pls.' Opp'n Mot. Judicial Notice at 2-3, ECF No. 21.) The court disagrees for three reasons.
First, the legislative history provided by InSinkErator discloses that Professor Holland testified in support of amending Or. Rev. Stat. § 12.220, and that the summary of the testimony was obtained from the Oregon State Archives. (Id.) Thus, the Professor Holland's written summary of the testimony is a matter of public record. Makaneole v. Solarworld Indus. Am., Inc., Case No. 3:14-cv-1528-PK, 2016 WL 7856433, at *3 (D. Or. Sept. 2, 2016), adopted by 2017 WL 253983 (Jan. 17, 2017) (taking judicial notice of testimony in legislative history of Or. Rev. Stat. § 652.360).
Second, Plaintiffs do not challenge the authenticity of legislative history provided. Further, they do not contend that Professor Holland did not testify about House Bill 2284, or that the summary provided in the Oregon State Archives is not an accurate reflection of that testimony. Instead, Plaintiffs challenge the relevance of that testimony to the instant dispute. In resolving the present dispute concerning Oregon's savings statute, the court must apply Oregon's rules of statutory interpretation. Brunozzi v. Cable Comms. Inc., 851 F.3d 990, 998 (9th Cir. 2017) (citing State v. Gaines, 346 Or. 160 (2009) (en banc)) (applying Oregon law in diversity suit). Under Oregon law, the court must consider the text and context of the statute, then may consider any legislative history proffered by a party. Brunozzi, 851 F.3d at 998; Gaines, 346 Or. at 171-172; see also Or. Rev. Stat. § 174.020(1)(b) (providing that a party may offer legislative history of the statute to aid in the court's construction of the statue). Moreover, as the Oregon Supreme Court recognized in Gaines, “what evaluative weight that the court gives [to the legislative history], is for the court to determine.” Gaines, 346 Or. at 172. Thus, the court may need to examine legislative history to resolve the instant action and the court will determine the weight to which it is entitled.
Third, courts interpreting § 12.220 have examined the testimony of Professor Holland when discussing the statute's legislative history. See, e.g, Ziniker v. Waldo, Case No. CV- 06-1042-ST, 2007 WL 445558, at *5-6 (D. Or. Feb. 6, 2007) (discussing Professor Holland's testimony on H.B. 2284 when determining whether § 12.220 applied); Ram Tech. Servs., Inc. v. Koresko, 346 Or. 215, 234 (2009) (en banc) (considering Professor Holland's testimony on purposes of proposed amendments to § 12.220); Belinksey v. Clooten, 237 Or.App. 106, 11-12 (2010) (considering testimony of Professor Holland about purpose of amendments to § 12.220). Clearly, other courts have determined that Professor Holland's testimony is worthy of consideration. What weight this court decides to give that legislative history, if any, does not bear on whether the statute's legislative history is fit for judicial notice. Unquestionably, the legislative history offered by InSinkErator is a proper subject of judicial notice. Makaneole, 2016 WL 7856433, at *3 (taking judicial notice of legislative history of statute provided by party). Accordingly, InSinkErator's request for judicial notice should be granted.
Discussion
InSinkErator moves to dismiss this lawsuit as untimely under Rule 12(b)(6). Under Oregon law, products liability cases are subject to a two-year statute of limitations. Or. Rev. Stat. § 30.905(1). The initial lawsuit was filed within the applicable statute of limitations but was not served within sixty days, and therefore the lawsuit was not timely “commenced, ” a point Plaintiffs concede. Plaintiffs now contend that their initial lawsuit was dismissed for purely procedural reasons, therefore, § 12.220 applies and InSinkErator's motion to dismiss should be denied.
Plaintiffs argue that notwithstanding the dismissal of their initial lawsuit, their current lawsuit may proceed by application of Oregon's savings statute, codified at Or. Rev. Stat. § 12.220. That statute provides in relevant part:
(1) Notwithstanding ORS 12.020, if an action is filed with a court within the time allowed by statute, and the action is involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action, or is involuntarily dismissed with prejudice on the ground that the plaintiff failed to properly effect service of summons within the time allowed by ORS 12.020 and the statute of limitations for the action expired, the plaintiff may commence a new action based on the same claim or claims against a defendant in the original action if the defendant had actual notice of the filing of the original action not later than 60 days after the action was filed.
(2) If, pursuant to subsection (1) of this section, a new action is commenced in the manner provided by ORS 12.020 not later than 180 days after the judgment dismissing the original action is entered in the register of the court, the new action is not subject to dismissal by reason of not having been commenced within the time allowed by statute.Or. Rev. Stat. § 12.220(1)-(2).
“Oregon's savings statute allows a plaintiff to file a second complaint if the original complaint is involuntarily dismissed because of a lack of service within sixty days of filing the complaint and the statute of limitations ran before service.” Raymond v. Anheuser-Busch Co., LLC, Case No. 6:15-cv-01191-MC, 2015 WL 8492455, at *1 n.1 (D. Or. Dec. 10, 2015) (citing Or. Rev. Stat. § 12.220(1)). The statute also requires that the defendant have had “actual notice of filing within the relevant sixty-day period.” Id. (providing that § 12.220 requires actual notice to the defendant to apply); see also Williford v. City of Portland, 320 Fed.Appx. 513, 515 (9th Cir. 2009) (holding that in light most favorable to the plaintiffs, defendants likely had actual notice of complaint within sixty days of filing, thus § 12.220 applied).
InSinkErator argues that § 12.220 is inapplicable for two reasons: (1) the savings statute does not apply to products liability actions; and (2) even if the savings statute does apply, Plaintiffs cannot demonstrate that InSinkErator had “actual notice” within sixty days of the filing of the complaint. Plaintiffs respond that InSinkErator had “actual notice” of the initial lawsuit because they “had numerous conversations and email exchanges with Defendant's counsel regarding the filing of this suit.” (Pls.' Opp'n to Def.'s Mot. Dismiss at 5, ECF No. 14.) The court declines to address whether § 12.220 applies to products liability actions; even if it applied, it would not save Plaintiffs' action because they have not shown InSinkErator had actual notice.
The parties both cite Ziniker v. Waldo, Case No. CV-06-1042-ST, 2007 WL 445558, at *1 (D. Or. Feb. 6, 2007), as support for their respective positions. In that case, the plaintiff Otto “Ed” Ziniker was injured while assisting the defendant Ray Waldo while on Waldo's property. Three days before the statute of limitations expired, Ziniker filed suit in federal court based on the diversity of the parties. Id. Ziniker filed a waiver of service by defense counsel within the 120 days of filing the complaint pursuant to Fed.R.Civ.P. 4(m), but state law governs service in diversity cases, and the action was dismissed because it was not timely commenced. Id. Ziniker then filed a second action contending he should be permitted to proceed pursuant to § 12.220. Id.
Waldo argued § 12.220 did not apply because he did not have actual notice within sixty days of the filing of the complaint. Id. at *7. The court examined the language of § 12.220, and reasoned that “actual notice” is distinct from “adequate notice.” Id. at *8-9. The Ziniker court found that “[t]he focus is not on whether service was attempted on Waldo or whether he received a copy of the Complaint, but only whether he received ‘actual notice of the filing of the action' within the 60 day period.” Id. at *9. The court determined that by using the term “actual, ” the legislature intended “the type of notice required is different than mere constructive or imputed notice.” Id. “Actual notice instead requires that notice is given to the person who must be notified.” Id. Thus, Ziniker instructs that constructive notice is insufficient under § 12.220.
Specifically addressing the type of notice and to whom it must be given, the Ziniker court noted that Waldo's insurer and defense counsel received notice of the filing and a copy of the complaint within the sixty-day period, but “notice to them is not the same as notice to Waldo.” Id. at *9. There, Ziniker's attorney Dvorak filed a lawsuit in federal court on July 1, 2005. Id. at *7. On July 13, 2005, Dvorak hand-delivered a letter to the insurer stating that a complaint had been filed to preserve the statute of limitations, but that he was not yet serving the lawsuit to allow discussion of settlement options. Id. at *7. The insurer's claims office received a copy of the complaint and the letter in mid-July. Id. In mid-July Dvorak called Waldo, and informed him that he was Ziniker's attorney, and had filed a lawsuit in federal court. Id. On July 20, 2005, Waldo and his insurer traveled to the properly to take pictures and discuss damages, and the insurer informed Waldo a lawsuit would be filed. Id. at *7. In August 2005, the insurer told Waldo the matter was being referred to an attorney. Id. at *8. On September 16, 2005, Waldo granted the insurer's request to accept service on his behalf, which was the first time Waldo recalled knowing a lawsuit was filed against him. Id. at *8.
The Ziniker court concluded that Waldo received “actual notice” within the sixty-day period when Ziniker's lawyer called Waldo and informed him that the complaint had been filed:
[t]he only evidence in the record about notice within the 60[-]day period given to Waldo, as opposed to his insurer and the lawyer, is Dvorak's recollection of his July 2005 telephone call to Waldo and Waldo's concession that Dvorak could easily have told him in that conversation that the lawsuit had been filed.Id. at *8. Based on the concession by Waldo, and the clear recollection by Dvorak, the court concluded that even if Waldo did not completely understand the impact of the lawsuit being filed, Waldo nevertheless received “actual notice” of the lawsuit through his conversation with Dvorak. Continuing, the court also reasoned that the savings statute “speaks in terms of the defendant receiving ‘actual notice,' rather than the plaintiff giving ‘actual notice, ” and that goal of the savings statute is to permit “the plaintiff to overcome a procedural mistake without prejudicing the defendant.” Id. at * 11. Thus, the Ziniker court found § 12.220 applied.
The analysis in Raymond v. Anheuser-Busch, 2015 WL 8492455 also is instructive. In Raymond, the court concluded that the defendants did not have actual notice that the plaintiff filed a complaint. Id. at * 3. In that case, the parties discussed the plaintiff s claim, but “unlike Ziniker, Plaintiff admits that this conversation occurred before she filed the complaint, and that service occurred past the sixty-day period.” Id. at *3. And unlike Ziniker, the Raymond defendants submitted declarations providing “that they had no notice of the filing of the action prior to receiving untimely service on September 14, 2015.” Id. In Raymond, the plaintiff admitted she had no direct evidence that defendants had actual notice, relying instead on defendants' subscription to a service that provides notice of filings in the District of Oregon. Id. The Raymond court determined the subscription was “constructive notice” and was insufficient to establish actual notice under § 12.220. Id. Thus, the Raymond court concluded that the defendants did not have actual notice as a matter of law, § 12.220 did not apply, and dismissed the action. Id. at *3-4.
Applying Ziniker and Raymond here, the critical question is “whether the defendant, rather than his agents, received actual notice of the filing of the action.” Raymond, 2015 WL 8492455, at *3. The focus thus is on actual notice of the lawsuit received by InSinkErator rather than its lawyer. The facts show that InSinkErator did not timely receive actual notice.
At least since December 2016, attorney W. Ward Morrison represented InSinkErator and was involved in the investigation of the allegedly defective Water Heater and property damage. (Decl. Carson O. Smith Supp. Pls.' Opp'n Mot. Dismiss (“Smith Decl.”) ¶ 4, ECF No. 14-1; Decl. Carson O. Smith Ex. B, Case No. 3:19-cv-00250-AC, ECF No. 11.)
On October 15, 2018, Lexington's paralegal Lisa A. Heath contacted Morrison, stating: “Our client has requested we file suit due to the impending statute in this matter. Please advise of the proper entity for service.” (Decl. W. Ward Morrison Ex. A, ECF No. 25-1 at 6.) On October 15, 2018, Morrison responded via email inquiring “would you mind letting me know who Lexington will be suing as defendants?” (Id. at 5.) Morrison also informed Heath that correct entity is “InSinkErator is a division of Emerson Electric Co.” (Id.) On October 16, 2018, Heath responded that “Defendants are Emerson/InSinkErator. Should both entities be named?” (Id. at 4.) On October 17, 2018, Morrison responded that the correct description would be “InSinkErator, a division of Emerson Electric Co.” (Id.)
Plaintiffs filed the initial lawsuit in Multnomah County Circuity Court on November 9, 2018. (Compl., Case No. 3:19-cv-00250-AC, ECF No. 1-1.) On November 15, 2018, Plaintiffs filed an amended complaint, identifying Defendant as “InSinkErator, a division of Emerson Electric Co.” (Id. at ECF No. 1-3.)
On November 28, 2018, Heath emailed Morrison to inquire if he is “able/willing to accept service in this matter on behalf of InSinkErator?” (Id. at 3.) Heath did not attach a copy of the complaint or amended complaint to the November 28, 2018 email. On December 1, 2018, Morrison responded via email that he is not authorized to accept service but could inquire of his client. (Id.) On December 10, 2018, Morrison informed Heath via email that he hadn't “yet been able to connect with my client to obtain authorization to accept service. I'll certainly understand if you decide to proceed with service on the registered agent. Otherwise, I'm happy to give it another whirl this week.” (Id. at 2.) Heath responded that day - indicating her preference to have Morrison try again with his client, or she would “have it served after Christmas.” (Id. at 2.)
On January 22, 2019, Multnomah County Circuit Court issued a sixty-three-day Notice that service had not yet been completed. (Deci. Wendy E. Lyon Ex. A, Case No. 3:19-cv-00250-AC, ECF No. 5-1.) InSinkErator's registered agent was served on January 23, 2019. (Id. Ex. B, ECF No. 5-2.)
Based on these facts, Plaintiffs contend that “throughout the course of this loss, our office corresponded with Mr. Morrison regarding this loss, the claimed damages, various site inspections and lab inspections and testing, the potential lawsuit, the actual lawsuit and the efforts to amend the complaint and [ ] naming the defendant correctly.” (Smith Deci. ¶ 7.) Plaintiffs argue that Morrison “acknowledged the filing” and suggests that after receiving information provided by Morrison, it filed an amended complaint to identify the correct legal name for InSinkErator. (Pls.' Opp'n to Def.'s Mot. for Judicial Notice at 3-4, ECF No. 21.) Plaintiffs' version of these facts is not supported by the email exchanges between Heath and Morrison.
As detailed above, Morrison provided the correct legal entity on October 17, 2018, at least three weeks prior to Plaintiffs finding the initial lawsuit on November 9, 2018, and nearly a month before the amended complaint was filed on November 15, 2018. Heath did not correspond with Morrison again until November 28, 2018, when she inquired whether he would accept service, a request unrelated to the correct legal entity for InSinkErator. Thus, contrary to Plaintiffs' suggestion, they did not amend the complaint based on information provided by Morrison within the sixty-day period. Additionally, the email exchanges between Heath and Morrison do not support an inference that Morrison “acknowledged” the filing of the complaint; Heath did not attach the complaint or the amended to complaint to any email correspondence with Morrison, or state that the lawsuit had been filed. If Plaintiffs have other evidence demonstrating that Morrison “acknowledged” the filing of the initial lawsuit in November 2018, or directly stated as much, they have not proffered it to the court.
Additionally, under Ziniker and Raymond, Morrison's knowledge of the lawsuit's filing is insufficient. Rather, the critical inquiry for application of § 12.220 is whether InSinkErator had notice. Ziniker, 2007 WL 445558, at *9 (“Actual notice instead requires that notice is given to the person who must be notified.”); Raymond, 2015 WL 8492455, at *3 (“[T]he proper inquiry is whether the defendant, rather than his agents, received actual notice of the filing of the action.”). For § 12.220 to apply, actual notice of the lawsuit much reach the defendant, not merely its agents. On the record before the court, viewing the evidence in the light most favorable to Plaintiffs, they have shown - at best - that Morrison had constructive knowledge of the lawsuit.
Under Plaintiffs' theory, to establish actual notice to InSinkErator, the court is required to infer that Morrison informed InSinkErator within the sixty-day service period that a lawsuit had been filed. Such an inferential leap is not supported by the plain language of the statute nor the case law interpreting it. Ziniker and Raymond expressly counsel against constructive and inferential notice in circumstances such as those present here. Unlike Ziniker, Plaintiffs identify no facts to establish that InSinkErator received actual notice, such as in the form of a copy of the complaint or a direct conversation about the lawsuit. Ziniker, 2007 WL 445558, at *10 (discussing evidence showing plaintiffs lawyer spoke to defendant and informed him lawsuit was filed).
The court is mindful that correspondence about lawsuits typically is channeled through attorneys where a party is known to be represented. However, the plain language of the statute requires that “actual notice” reach the defendant, not simply the lawyer or the insurer. Moreover, the court is especially reluctant to infer actual notice where Smith does not attest that he directly spoke with Morrison about the lawsuit being filed and Plaintiffs instead rely only on an email inquiry about accepting service - a request Morrison expressly denied. For all these reasons, the court finds that there is no evidence, direct or inferred, that InSinkErator received actual notice of the lawsuit during the sixty-day period.
The court therefore concludes that viewed in the light most favorable to Plaintiffs, the facts alleged here fail to show InSinkErator had “actual knowledge” of the lawsuit. At best, Plaintiffs show that they provided constructive notice to InSinkErator's lawyer. Because constructive notice to an agent is not “actual notice” to a defendant that a lawsuit has been filed, § 12.220 would not apply to the facts of this case.
Absent application of Oregon's savings statute, it is apparent on the face of the complaint that the action is untimely. Plaintiffs allege that InSinkErator's Water Heater caused damaged Metro's property on November 24, 2016, and filed the instant action on August 13, 2020, well beyond expiration of the two-year statute of limitations. Therefore, InSinkErator's Rule 12(b)(6) motion to dismiss should be granted.
Conclusion
Based on the above, the court recommends that Defendant's Request for Judicial Notice (ECF No. 20) be GRANTED and Defendant's Motion to Dismiss (ECF No. 6) be GRANTED.
Scheduling Order
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then 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 Recommendations will go under advisement.