Opinion
Consolidated Cases: CV 00-393-HU, CV 00-1391-HU
August 22, 2001
Craig A. Crispin, Shelley D. Russell, Crispin Associates, Portland, Oregon, Attorneys for Plaintiffs.
Paul C. Buchanan, Sharon A. Hill, Stoel Rives LLP, Portland, Oregon, Attorneys for Defendant.
OPINION AND ORDER
Magistrate Judge Hubel filed his Findings and Recommendation on June 14, 2001, granting in part and denying in part defendant's motion to dismiss parts of the Fourth Amended complaint in the Travis case (00-393) and parts of the Amended Complaint in the Kennedy-Walker case (00-1391). The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(b) of the Federal Rules of Civil Procedure. Review by the district court of the magistrate judge's determination is de novo. 28 U.S.C. § 636(b)(1)(C).
Plaintiffs have filed a timely objection to Magistrate Judge Hubel's Findings and Recommendation, and defendant has responded to the objection. I have reviewed the file of this case.
I agree with Magistrate Judge Hubel's conclusion that the discovery rule does not save Kennedy-Walker's gross negligence claim from being barred by the statute of limitations, because the discovery rule applies only to facts and not to the discovery of a legal basis for a claim. Kennedy-Walker's gross negligence claim must be dismissed with prejudice.
The same rationale applies to the fraud claims of Kennedy-Walker, Duncan, and Maddocks. I agree with Magistrate Judge Hubel that there were no facts related to the fraud claims that remained undiscoverable until within the limitations period, even though plaintiffs may have not recognized at that point that the facts they knew amounted to a possible legal claim.
Therefore, I ADOPT the Magistrate Judge's Findings and Recommendation (doc. 72) that defendant's motion to dismiss (doc. 57) be granted in part and denied in part as follows: (1) the motion is granted with prejudice as to the Employer Liability Act claim, Kennedy-Walker's gross negligence claim, Kennedy-Walker's, Duncan's, and Maddocks' fraud claims, and Kennedy-Walker's overtime claim under Or. Rev. Stat. § 653.055; (2) the motion is granted without prejudice as to the wage claim under Or. Rev. Stat. § 652.150; and (3) the motion is denied as to Travis' and Clark's fraud claims.
IT IS SO ORDERED.