Gherman v. Clark

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MIRIAM GHERMAN, Plaintiff, v. DYLAN CLARK, Defendant.

No. 3:22-cv-01274-YY

United States District Court, D. Oregon, Portland Division

August 28, 2023

FINDINGS AND RECOMMENDATIONS

Youlee Yim You United States Magistrate Judge

FINDINGS

On June 5, 2022, plaintiff Miriam Gherman filed an action in Multnomah County Circuit Court against defendant Dylan Clark asserting claims of battery, assault, intentional infliction of emotional distress, and negligence arising from incidents that allegedly occurred between October 31, 2018, and June 14, 2020. See Notice Removal, Ex. A (Compl.), ECF 1. Defendant removed the case to this court, and has filed a motion to dismiss (ECF 11) pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that any claims arising from incidents that occurred prior to June 5, 2020, are time-barred under O.R.S. 12.110(1), which prescribes a two-year statute of limitations for torts. Plaintiff contends that her claims are not time-barred because O.R.S. 147.065 contains a five-year statute of limitations that applies to actions arising from the commission of “compensable crimes.”

Defendant's motion to dismiss should be granted with respect to any incidents that allegedly occurred before June 5, 2020. As defendant correctly contends, O.R.S. 147.065 does not allow for all actions arising out of “compensable crimes” to be filed within five years. Rather, the five-year period is tied to the formation of an escrow account under Oregon's “Son of Sam” law, and no such escrow account has been created here.

Plaintiff otherwise concedes that she has not alleged sufficient facts to support claims 34, 35, and 36, which are based on a June 14, 2020 incident. Pursuant to that concession, those claims should also be dismissed.

I. Motion to Dismiss Standards

To survive a motion to dismiss under Rule 12(b)(6), the complaint must contain sufficient non-conclusory factual allegations to state a claim for relief that is “plausible on its face.” Ashcroft v Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This requires the plaintiff to plead facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. While a complaint need not contain “detailed factual allegations,” a pleading that offers only “labels and conclusions” or a “formulaic recitation of the elements of a cause of action” is not sufficient. Id. (quoting Twombly, 550 U.S. at 555). In the absence of a cognizable legal theory or sufficient factual allegations to support a cognizable legal theory, the claim should be dismissed. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). The court must accept all allegations of material facts as true and construe them in the light most favorable to the plaintiff. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009).

“A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when ‘the running of the statute is apparent on the face of the complaint.'” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). Dismissal is appropriate where the plaintiff cannot prove facts that would establish the timeliness of the complaint. Id. (citing Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)).

II. Law Regarding Statutory Interpretation

The Oregon Supreme Court has not interpreted the scope of the statute at issue, O.R.S. 147.065. In the absence of controlling case law by the Oregon Supreme Court, this court's task is to determine how that court would construe the statute. Nike, Inc. v. McCarthy, 379 F.3d 576, 581 (9th Cir. 2004).

“[T]he ‘cardinal rule' of statutory interpretation [is] that a court ‘shall pursue the intention of the legislature if possible.'” State v. Gaines, 346 Or. 160, 165 (2009) (quoting Holman Trf. Co. et al v. Portland et al., 196 Or. 551, 564 (1952)). The “first step” in this inquiry is to examine “the text and context of the statute, which are the best indications of the legislature's intent.” State v. Walker, 356 Or. 4, 13 (2014); see also Gaines, 346 Or. 160, 171 (2009) (“[A]s this court and other authorities long have observed, there is no more persuasive evidence of the intent of the legislature than ‘the words by which the legislature undertook to give expression to its wishes.'”) (quoting U.S. v. American TruckingAss'ns., 310 U.S. 534, 54244 (1940)).

The court gives “‘words of common usage their plain, natural, and ordinary meaning[s],' and . . . give[s] words that have well-defined legal meanings those meanings.” Bergerson v. Salem-Keizer Sch. Dist., 341 Or. 401, 413 (2006) (quoting Norden v. Water Resources Dep't., 329 Or. 641, 645 (2000)). Where the legislature has not defined a term, the court may rely on the dictionary definition of the term to determine the legislature's intended meaning. State v. Branch, 362 Or. 351, 357 (2018) (“[W]e frequently consult dictionary definitions to determine the meaning of such terms ‘on the assumption that, if the legislature did not give the term a specialized definition, the dictionary definition reflects the meaning that the legislature would naturally have intended.'”). “Context includes other provisions of the same statute, the session laws, and related statutes.” Stevens v. Czerniak, 336 Or. 392, 401 (2004) (citations omitted). “It also includes ‘the preexisting common law and the statutory framework within which the law was enacted.'” Id. (quoting Denton and Denton, 326 Or. 236, 241 (1998)).

Next, “even if the court does not perceive an ambiguity in the statute's text,” the court may consider the statute's legislative history “where [it] appears useful to the court's analysis.” Gaines, 346 Or. at 172. The evaluative weight given to the legislative history is for the court to determine; however, the Oregon Supreme Court has cautioned that “a party seeking to overcome seemingly plain and unambiguous text with legislative history has a difficult task before it.” Id. Lastly, if “the legislature's intent remains unclear after examining text, context, and legislative history, the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.” Id.

“As a general rule,” when interpreting a statute, the court should “attempt to do so in a manner that gives effect to all of the provisions of the statute where possible.” Matter of Comp. of Ward, 369 Or. 384, 398 (2022). In other words, the court should “generally attempt to avoid a statutory construction that creates redundancy in the way the statute is read.” Id. (citing Blachana, LLC v. Bureau of Labor and Industries, 354 Or. 676, 692 (2014) (“[R]edundancy, of course, is a consequence that this court must avoid if possible.”); State v. Kellar, 349 Or. 626, 636 (2011) (“Defendant's interpretation results in a redundancy, something that we seek to avoid in interpreting statutes.”)). Finally, the court is “responsible for determining the correct meaning of a statutory provision, regardless of whether that interpretation is asserted by the parties.” Scott v. Dep't of Revenue, 358 Or. 795, 801 (2016).

III. Analysis of O.R.S. 147.065

The court begins with the text of O.R.S. 147.065, which provides:

Notwithstanding ORS 12.110 the victim of any compensable crime as defined in ORS 147.005 or the victim's representative may bring an action at any time within the five-year period after the commission of the compensable crime.

“Compensable crimes” are defined as the “abuse of corpse in any degree or an intentional, knowing, reckless or criminally negligent act that results in injury or death of another person and that, if committed by a person of full legal capacity, would be punishable as a crime in this state.” O.R.S. 147.005(4).

The term “action” is not defined in O.R.S. 147.065. Thus, the court looks to the plain, natural, and ordinary meaning of “action,” which is defined as (1) “a legal proceeding by which one demands or enforces one's right in a court of justice,” and (2) “a judicial proceeding for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” Webster's Third New Int'l Dictionary 21 (unabridged ed. 1993).^[1] This is the same as the term's “well-defined legal meaning,” which is “[a] civil . . . judicial proceeding.” See Action, Black's Law Dictionary (11th ed. 2019); see also FED. R. CIV. P. 2 (“There is one form of action-the civil action.”); Bergerson, 341 Or. at 413 (“[W]e give words that have well-defined legal meanings those meanings.”). Thus, the text of O.R.S. 147.065 indicates that the word “action” means a civil action.

This interpretation is supported by the context of O.R.S. 147.065. Context can be found in “the same chapter in which a provision has been codified.” Oakleigh-McClure Neighbors v. City of Eugene, 269 Or.App. 176, 183 (2015) (explaining that the “‘same statute' can refer to the same chapter in which a provision has been codified”). Elsewhere in chapter 147, specifically O.R.S. 147.281(1), the term “action” is defined as “an action, suit or proceeding.” Although this definition of “action” applies when “used in ORS 147.281 to 147.298,” the fact the legislature chose to define “action” in this way in the same chapter is probative of its intent. Similarly, the term “action” is used as part of the term “civil action” in another section of chapter 147, i.e., O.R.S 147.275(3)(b). And O.R.S. 147.275(8) recognizes that “judgments,” which are the culmination of a civil action, are obtained by “victims or their representatives,” i.e., the same terms that are used in ...