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Smith v. Evraz Inc.

United States District Court, D. Oregon

May 22, 2017

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.

          James P. McCurdy and Alice S. Newlin, Lindsay Hart, LLP, Of Attorneys for Defendant.


          Michael H. Simon United States District Judge.

         On 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.


         A party 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).

         The 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).

         “A 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)).


         Since 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.

         Since 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.

         On 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.

         At the 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.

         On 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 ...

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