Opinion
2:23-cv-00260-HL
08-15-2023
KIMBERLY OWEN, Plaintiff, v. SVEN CEDRIC BUERKI and FANNY BUERKI, Defendant.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN United States Magistrate Judge.
Plaintiff Kimberly Owen brings this negligence action against Defendants Sven and Fanny Buerki related to a car accident in Malheur County, Oregon in July 2020. This matter comes before the Court on Defendants' Motion to Dismiss. See ECF 10. Defendants argue that Plaintiff's claim is barred by the statute of limitations. For the reasons discussed below, Defendants' Motion to Dismiss, ECF 10, should be GRANTED, and Plaintiff's claim should be dismissed with prejudice.
The Court has jurisdiction over this case based on diversity of citizenship between Plaintiff and Defendants. See 28 U.S.C. § 1332.
BACKGROUND
Plaintiff is a resident of the state of Washington. Compl. 3, ECF 1. Defendants are residents of Idaho. Id. On July 31, 2020, Plaintiff and Defendants were in a car accident in Malheur County, Oregon. Id. On February 21, 2023, Plaintiff filed this lawsuit alleging that Defendants caused her injuries and seeking damages. Id.
LEGAL STANDARD
“A statute-of-limitations defense, if ‘apparent from the face of the complaint,' may properly be raised in a motion to dismiss.” Seven Arts FilmedEntm't Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013) (quoting Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir. 1980)). “If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim[.]” Jones v. Bock, 549 U.S. 199, 215 (2007); see also Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995) (noting that “a complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim”) (citation omitted). “Where claims are barred by the statute of limitations, the trial court may dismiss the plaintiff's claims without leave to amend because the amendment would be futile.” Rubin v. Oregon, 19- 01377-IM, 2020 WL 2172187, at *1 (D. Or. May 5, 2020) (citing Platt Elec. Supply Inc. v. EOFFElec. Inc., 522 F.3d 1049, 1060 (9th Cir. 2008)).
DISCUSSION
Plaintiff brings a personal injury claim against Defendants. Compl. 3-4. Defendants argue that Plaintiff's claim should be dismissed because: (1) Plaintiff's car accident occurred in Oregon on July 31, 2020; (2) the statute of limitation for personal injury claims in Oregon is two years; and (3) Plaintiff filed this action on February 21, 2023, after the applicable statute of limitations expired. Defs.' Mot. 2-3. Plaintiff argues that Washington's three-year statute of limitations applies to her claim and that her complaint was therefore filed on time. Resp. 3-4, ECF 11. Plaintiff argues, in the alternative, that the Court should exercise its “broad authority” by “tolling the statute” through February 21, 2023. Id. 4-5.
I. Plaintiffs' claims are barred by Oregon's applicable two year statute of limitations.
“Federal courts sitting in diversity must apply ‘the forum state's choice of law rules to determine the controlling substantive law.'” Fields v. Legacy Health System, 413 F.3d 943, 950 (2005) (quoting Patton v. Cox, 276 F.3d 493, 495 (9th Cir. 2002)).
Or. Rev. Stat. (“ORS”) § 12.430 is “the correct starting point when the parties' dispute requires the court to choose between conflicting statutes of limitations.” Portfolio Recovery Assocs., LLC v. Sanders, 366 Or. 355, 362 (2020). That statue provides that “if a claim is substantively based . . . [u]pon the law of one other state, the limitation period of that state applies[.]” ORS § 12.430(1)(a). This Court must “use Oregon's conflicts law to select the substantive law that governs the litigated claim.” Portfolio Recovery Assocs., 366 Or. at 364 (simplified).
ORS § 12.450 contains an exception where the limitations period in another state does not provide a “fair opportunity to sue upon,” in which case Oregon law would apply. That exception is not relevant here because Plaintiff seeks to apply Washington law.
Here, the parties agree that the choice of law statute is ORS § 15.440(3)(b), which provides: “If both the injurious conduct and the resulting injury occurred in a state other than the state in which either the injured person or the person whose conduct caused the injury were domiciled, the law of the state of conduct and injury governs.” There is no dispute that the “injurious conduct” and “resulting injury” occurred in Oregon. Compl. 3. Further, neither Plaintiff nor Defendants are “domiciled” in Oregon; Plaintiff resides in Washington and Defendants reside in Idaho. Id. Thus, under the plain language of the statute, Oregon law applies to Plaintiff's claim because “the law of the state of conduct and injury governs.” Id.
In advocating for the use of Washington law, Plaintiff relies on the standards set forth in ORS § 15.445 (general and residual approach). Resp. 2-3. Before Plaintiffs can turn to the factors set forth in that statue, however, they must “demonstrate[] that, under the circumstances of the particular case, the application of that law to a disputed issue will not serve the objectives of that law[.]” ORS § 15.440(3)(b).
The Oregon Law Commission has provided helpful commentary on this provision and its purpose. The Commission commentary explains that the exception contained in ORS § 15.440(3)(b) is primarily necessary in cases where the “state of conduct and injury may be transient, fortuitous, or otherwise tenuous.” Oregon Law Commission, Choice-of-Law for Torts and Other Non-Contractual Claims Report and Comments, 24 (2009). The Commission goes on to explain that “even if the state of conduct and injury are transient and fortuitous,” “some cases may not be good candidates for this exception.” For example:
Defendants note, and this Court concurs, that there are no cases applying ORS § 15.440(3)(b) or the exception contained therein. Def. Mot. 2. Accordingly, this Court will rely on the Oregon Law Commission's commentary as persuasive authority. See Tarr v. USF Reddaway, Inc., 15-02243-PK, 2017 WL 8895640, at *3 (D. Or. Nov. 7, 2017), report and recommendation adopted, 15-02243-PK, 2018 WL 659859 (D. Or. Feb. 1, 2018) (noting the absence of caselaw regarding ORS § 15.440(3)(a) and citing commentary of the Oregon Law Commission for guidance).
Suppose . . . that parties domiciled in State A and B, respectively, are involved in a two-car traffic accident in State X and one of the disputed issues is whether one of the parties was negligent in driving the car that caused the accident. In the absence of serious countervailing factors, this case would not be a good candidate for the above exception because the state's conduct regulation policies or objectives would be served by applying State X's law for judging what constitutes negligence.Id.
The present case is indistinguishable from the Commission's example. Although it was transient and fortuitous that the injury occurred in Oregon, this Court must still look to whether there are serious countervailing factors that would warrant application of Washington law. Plaintiff asserts that “the negligence laws of Washington State are strongly held and are designed to protect the citizens of Washington State[,]” and Plaintiff “suffered through two years of treatment in Washington State after the crash in Oregon.” Resp. 3. While those assertions may be true, they do not qualify as serious countervailing factors under ORS § 15.440(3)(b). Rather, those factors would be present in most split-domicile automobile accident cases where the injury occurred in a third state. As such, Oregon's conduct regulation policies or objectives would be served by applying Oregon law for determining what constitutes negligence. Oregon law therefore applies to this action, and pursuant to ORS § 12.430, this Court must apply Oregon's statute of limitations.
Turning to the application of Oregon's statute of limitations, Plaintiff acknowledges that she filed her claim after the statute of limitations expired under Oregon law. Under Oregon law, there is a two-year statute of limitations for personal injury claims. See ORS § 12.110(1). Because Plaintiff's car accident with Defendants occurred on July 31, 2020, she needed to file her claim before July 31, 2022. See id. Plaintiff filed her complaint on February 21, 2023, which was well after the two-year statute of limitations had run on her claim. Accordingly, her claims are barred by the two-year statute of limitations.
II. Equitable tolling does not apply.
The doctrine of equitable tolling “focuses on whether there was excusable delay by the plaintiff: If a reasonable plaintiff would not have known of the existence of a possible claim within the limitations period, then equitable tolling will serve to extend the statute of limitations for filing suit until the plaintiff can gather what information he needs.” Lukovsky v. City & Cnty. of San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008) (simplified). “Broad tolling rules, such as those for . . . the pendency of other proceedings, equitable tolling, and equitable estoppel are borrowed from state law.” Duncan v. Ore., 05-1747-KI, 2007 WL 789433, at *3 (D. Or. March 14, 2007) (citing Sain v. City of Bend, 309 F.3d 1134, 1138 (9th Cir. 2002)). “Equitable tolling is sparingly used in Oregon.” Rodriguez v. Williams, 08-290-ST, 2010 WL 1542092, at *3 (D. Or. Feb. 25, 2010), report and recommendation adopted, 08-290-ST, 2010 WL 1541962 (D. Or. Apr. 14, 2010), aff'd, 447 Fed.Appx. 850 (9th Cir. 2011). Under Oregon law, “equitable tolling is available [only] when circumstances outside of the control of [plaintiff] make it impossible to comply with [the] statute of limitations.” Id.; accord Coultas v. Payne, No. 3:11-CV-00045-AC, 2016 WL 740421, at *5 (D. Or. Feb. 24, 2016) (noting that the “doctrine of equitable tolling should be applied only to those claims where patent injustice would result in the court's failure to toll the statute of limitations”).
Here, Plaintiff argues that she filed her claim late “because the extent of her damages was still being determined[,]” Resp. 4, but she does not explain how that made it “impossible” for her to comply with the statute of limitations. Plaintiff also argues that Defendants' insurance carrier failed to inform her of the two-year statute of limitations, and she submits a declaration to support her contention. See Styles Decl. ¶ ix, ECF 12. Even if these allegations were true, they do not demonstrate that circumstances outside of her control made it impossible to timely file her complaint. Finally, plaintiff argues for tolling based on Fed.R.Civ.P. 6(b)(1)(B) and 60(b)(1), but those rules provide no basis for tolling the statute of limitations. O'Malley v. Tower of Egremont, 453 F.Supp.2d 240, 247 (D. Mass. 2006) (noting that Rule 6(b) does not apply to time periods set out in statues). Plaintiff is therefore not entitled to have the statute of limitations tolled. See Coultas, 2016 WL 740421, at *5 (holding that the plaintiff failed to “present sufficient justification for tolling the statute of limitations” where the plaintiff's late filing was due to a mistake about forum and his pro se status).
“As a general rule, ‘a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.'” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). The Ninth Circuit has explained that, on a motion to dismiss, a court may consider extrinsic evidence without converting the motion into a motion for summary judgment under two exceptions: (1) “a court may consider ‘material which is properly submitted as part of the complaint'”; and (2) “a court may take judicial notice of ‘matters of public record.'” Lee, 250 F.3d at 688-89. Plaintiff's evidence does not fall under either exception. However, even if the Court had grounds to consider extrinsic evidence, the record shows that Plaintiff, in fact, received timely notifications from Defendants' insurance carrier regarding the applicable two-year statute of limitations. See Thayer Decl. Ex. 2 and 3, ECF 14.
Plaintiff also argues that Defendants “should be found to have waived insufficiency of service as a defense,” Resp. 6, but defendants do not assert insufficient service as a basis for dismissal in their Motion to Dismiss. See Defs.' Mot. 1-6.
Because Plaintiff filed her complaint after the two-year statute of limitations expired on July 31, 2022, and there is no statutory or equitable basis for tolling the statute of limitations, Plaintiff's claim should be dismissed with prejudice.
RECOMMENDATION
Defendants' Motion to Dismiss, ECF 10, should be GRANTED, and Plaintiff's Complaint should be dismissed with prejudice.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.