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Tanner v. Phillips

United States District Court, D. Oregon

October 28, 2014

DANIEL J. TANNER, dba TANNERITE EXPLOSIVES, a sole proprietorship, Plaintiff,
v.
ANITA PHILLIPS, and the OFFICE OF FIRE MARSHAL, STATE OF OREGON, Defendants.

Daniel J. Tanner, Pleasant Hill, OR, Pro se plaintiff.

Ellen F. Rosenblum, Tracy J. White, Paul Reim, Attorney General's Office Department of Justice, Salem, OR, Attorneys for defendants.

OPINION AND ORDER

ANN AIKEN, District Judge.

Defendants Anita Phillips ("Phillips") and the Oregon Office of the State Fire Marshal ("Marshal") move to dismiss pro se plaintiff Daniel J. Tanner's complaint. For the reasons discussed below, defendants' motion is granted and this case is dismissed.

BACKGROUND[1]

Plaintiff is engaged in the business of manufacturing explosives. At all relevant times, Phillips was a Marshal employee responsible for permitting decisions. Plaintiff planned a "special effects pyrotechnic show, " on July 4, 2012, in Pleasant Hill, Oregon. Pl.'s Supplemental Mem. 2. Phillips, on behalf of the Marshal, denied plaintiff's permit to produce the show. Specifically, in a letter dated July 3, 2012, the Marshal explained that plaintiff was not authorized to produce the pyrotechnic explosives display because he "failed to provide the information needed to allow [defendants] to issue a permit." Pl.'s Supplemental Mem. Ex. D. Thereafter, Phillips notified the authorities in Pleasant Hill that plaintiff could not proceed with the display.

On June 23, 2014, plaintiff filed a complaint in this Court, alleging claims under: (1) 42 U.S.C. ยง 1983; and (2) state tort law for reckless interference with economic activity.[2] Plaintiff seeks $66, 000 in economic damages (his fee for the special effects show) and $100, 000 in non-economic damages resulting from physical and emotional distress. Compl. at pg. 5.

STANDARD OF REVIEW

Where plaintiff "fails to state a claim upon which relief can be granted, " the Court must dismiss the action. Fed.R.Civ.P. 12(b) (6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). For purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters , 719 F.2d 1422, 1424 (9th Cir. 1983). Bare assertions, however, that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal , 556 U.S. 662, 681 (2009). Rather, to state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).

DISCUSSION

I. Preliminary Matters

Three preliminary matters must be addressed before reaching the substantive merits of defendants' motion: (1)service of process; (2) the statute of limitations; and (3) the proper defendant pursuant to the Oregon Tort Claims Act (nOTCA").

A. Service of Process

Defendants assert that plaintiff did not effectuate proper service. Courts apply a "liberal and flexible construction" of the service rules, particularly where a pro se plaintiff is involved. Borzeka v. Heckler , 739 F.2d 444, 447 (9th Cir. 1984) (discussing an earlier version of Fed.R.Civ.P. 4). A court is not required to dismiss a complaint for ineffective service of process so long as "(a) the party that had to be served personally received actual notice, (b) the defendant would suffer no prejudice from the defect in service, (c) there is ...


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