United States District Court, D. Oregon
CECIL F. SMITH, Plaintiff,
EVRAZ INC., NA, a Delaware Corporation, Defendant.
Matthew J. Kalmanson and Michael G. Jacobs, Hart Wagner LLP,
Of Attorneys for Plaintiff.
P. McCurdy and Alice S. Newlin, Lindsay Hart, LLP, Of
Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge.
December 20, 2016, Plaintiff Cecil F. Smith
(“Smith”) brought this lawsuit alleging
negligence against Defendant EVRAZ Inc., NA
(“EVRAZ”). Plaintiff originally filed his action
against Defendant in Multnomah County Circuit Court, and
Defendant timely removed the lawsuit to this Court. Plaintiff
seeks damages for a personal injury that he sustained on
January 7, 2013, when he stepped into a pothole five inches
deep while working at a slab yard controlled and subleased by
Defendant at Terminal 6 at the Port of Portland. Defendant
has moved for summary judgment, asserting that
Plaintiff's claim is barred by Oregon's two-year
statute of limitations for negligence actions. For the
reasons that follow, the Court GRANTS Defendant's motion.
is entitled to summary judgment if the “movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party has the burden of
establishing the absence of a genuine dispute of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The court must view the evidence in the light most
favorable to the non-movant and draw all reasonable
inferences in the non-movant's favor. Clicks
Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257
(9th Cir. 2001). Although “[c]redibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge . . . ruling on a motion for summary
judgment, ” the “mere existence of a scintilla of
evidence in support of the plaintiff's position [is]
insufficient . . . .” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252, 255 (1986). “Where the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
and quotation marks omitted).
party moving for summary judgment bears the burden to show
“beyond controversy” all essential elements of
the claim or defense asserted. S. Cal. Gas Co. v. City of
Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). When a
defendant asserts that a claim is barred by an applicable
statute of limitation, defendant bears the burden to show the
statute applied and that plaintiff failed to file suit within
the allowed timeframe. See Keller v. Armstrong World
Industries, Inc., 342 Or. 23, 38 n.12 (2006) (finding
that “[b]ecause the statute of limitations is an
affirmative defense” for which the asserting party
“has the burden of persuasion at trial, ” a party
moving for summary judgment on such grounds bears the burden
to produce evidence supporting the motion).
federal court sitting in diversity applies the substantive
law of the state, including the state's statute of
limitations.” Albano v. Shea Homes Ltd.
P'ship, 634 F.3d 524, 530 (9th Cir. 2011). A federal
court must apply a state's substantive law as it has been
described by the state's highest court, including
reasoned dicta. Tompkins v. 23andMe, Inc., 840 F.3d
1016, 1023 (9th Cir. 2016) (quoting Muniz v. United
Parcel Serv., Inc., 738 F.3d 214, 219 (9th Cir. 2013)).
In the absence of a state high court decision that squarely
addresses an issue, this Court must follow the state's
intermediate appeals court decisions unless there is
“convincing evidence that the highest court of the
state would decide differently.” American
Triticale, Inc. v. Nytco Servs., Inc., 664 F.2d 1136,
1143 (9th Cir. 1981) (quoting Stoner v. N.Y. Life Ins.
Co., 311 U.S. 464, 467 (1940)); Tompkins, 840
F.3d at 1023 (“we generally will ‘follow a
published intermediate state court decision regarding [state]
law unless we are convinced that the [state's highest
court] would reject it.'” (quoting Muniz,
738 F.3d at 219)).
1988, Smith has been a longshore worker and marine clerk.
Since 2009, he has been a member of the International
Longshore and Warehouse Union, Local 40. On January 7, 2013,
Smith was working for Jones Stevedoring as a marine clerk
when he stepped into a pothole five inches deep at the slab
yard at Terminal 6 of the Port of Portland in Oregon. As a
result, Smith tore his left Achilles tendon. Smith knew
immediately that he had injured his left leg.
2010, ICTSI Oregon, Inc. (“ICTSI”) leases
Terminal 6 from the Port of Portland (the “Port”)
and since 2012 operates Terminal 6. EVRAZ, formerly known as
“Oregon Steel Mills, ” operates a steel milling
facility and uses Terminal 6 to load and unload cargo to and
from merchant vessels. EVRAZ subleases the slab yard at
Terminal 6 from ICTSI.
January 7, 2013, the day of his injury, Smith knew that the
Port owned Terminal 6, that ICTSI leased and operated
Terminal 6, and that EVRAZ subleased from ICTSI the slab yard
where Smith was injured. At the time of his injury, however,
Smith did not know how the Port, ICTSI, and EVRAZ allocated
among themselves contractual responsibilities for maintaining
the slab yard's pavement.
time of his injury, Smith was working for Jones Stevedoring,
counting steel slabs for EVRAZ. According to Smith, potholes
on the slab yard were a known problem, and both ICTSI and
EVRAZ previously had been informed of their existence.
August 12, 2013, Smith's attorney sent a letter to the
Port, requesting all documents regarding leases and
maintenance agreements relevant to Terminal 6 as of the day
of Smith's injury. The letter requested copies of these
documents to assist Smith's attorney in determining who
had contractual responsibility for filling the potholes at
the slab yard. On November 25, 2013, after three months with
no response from the Port, Smith's attorney sent a second
letter, threatening to subpoena the Port's records. On
December 11, 2013, the Port provided Smith with a copy of ...