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Port of Portland v. Monsanto Co.

United States District Court, D. Oregon, Portland Division

September 22, 2017

PORT OF PORTLAND, Plaintiff,
v.
MONSANTO COMPANY et al., Defendants.

          OPINION AND ORDER

          MICHAEL W. MOSMAN Chief United States District Judge

         On April 18, 2017, Magistrate Judge Paul Papak issued his Findings and Recommendation (“F&R”) [43], regarding Defendants' Request for Judicial Notice [15], Defendants' Supplemental Request for Judicial Notice [37], Plaintiff the Port of Portland's (“the Port”) Motion to Strike Defendants' Request for Judicial Notice [33], and Defendants' Motion to Dismiss [14]. Defendants objected [46] to the F&R and the Port responded [47].[1] For the following reasons, I ADOPT the F&R in part.

         LEGAL STANDARD

         The magistrate judge makes only recommendations to the court, to which any party may file written objections. The court is not bound by the recommendations of the magistrate judge, but retains responsibility for making the final determination. The court is generally required to make a de novo determination regarding those portions of the report or specified findings or recommendations as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court is not required to review, de novo or under any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the F&R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny with which I am required to review the F&R depends on whether or not objections have been filed, in either case, I am free to accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(1)(C).

         DISCUSSION

          I. Defendants' Requests for Judicial Notice and the Port's Motion to Strike

         Judge Papak recommends that Defendants' Request for Judicial Notice [15] should be GRANTED in part, DENIED in part; Defendants' Supplemental Request for Judicial Notice [37] should be DENIED in part as moot and DENIED in part on the merits; and the Port's Motion to Strike [33] should be DENIED in part as moot and in part on the merits. As to these recommendations, Defendants appear to only disagree with Judge Papak's finding that “it would be inappropriate for the court to take judicial notice of the facts contained within . . . the Arkema Documents . . . because those documents contain no facts not already in the record before this court which can reasonably be construed as adjudicative in connection with the Port's claims in this action.” It is unclear whether Defendants actually object to this finding, however, because they only discuss it in a footnote, simply stating they “disagree” without explicitly objecting to the finding. Defendants did not object to any other findings or recommendations related to their requests for judicial notice.

         I have reviewed Judge Papak's finding and recommendation as it relates to judicial notice of the Arkema Documents, and I agree with his recommendation. I also agree with Judge Papak's other findings and recommendations related to Defendants' requests for judicial notice and the Port's motion to strike. Accordingly, I ADOPT this portion of Judge Papak's opinion as my own. Defendants' Request for Judicial Notice [15] is GRANTED in part and DENIED in part; and Defendants' Supplemental Request for Judicial Notice [37] and the Port's Motion to Strike [33] are DENIED as moot in part and DENIED on the merits in part.

         II. Motion to Dismiss

         Defendants moved to dismiss all of the Port's claims on various theories. Judge Papak recommends that I GRANT the motion to dismiss as to the Port's common-law indemnity claim and claim for attorney fees. Neither party objects to Judge Papak's F&R as it relates to these claims. After reviewing Judge Papak's analysis, I agree with his findings and recommendations and DISMISS the claims without prejudice.[2]

         As to Defendants' motion to dismiss the Port's remaining claims, Judge Papak recommends that I DENY the motion. Defendants object to Judge Papak's recommendation that 1 deny their motion to dismiss the Port's public nuisance, products liability, negligence, and trespass claims. They argue that these claims should be dismissed because (1) they are untimely and (2) the Port has failed to state a plausible claim for relief on the merits of each claim. In addition, Defendants object to Judge Papak's finding and recommendation that the Port may seek damages for its costs in complying with regulatory requirements of the Clean Water Act. I consider each set of objections in turn.

         A. Whether the Port's Tort Claims Must Be Dismissed as Untimely

          The Port seeks to hold Defendants liable under multiple tort theories. Specifically, the Port has brought claims for public nuisance, negligence, trespass, design defect, and failure to warn. To the extent these claims are “product liability civil actions” under O.R.S. § 30.900, they might be subject to the statutes of limitations and repose contained in O.R.S. § 30.905. Indeed, none of the parties disagree that the design defect and failure to warn claims are product liability civil actions. As such, at least two of the claims could be subject to the timeliness requirements of § 30.905 if they accrued after 1977. See Marinelli v. Ford Motor Co., 696 P.2d 1, 2 (Or. Ct. App. 1985) (explaining that the product liability statute only applies to claims that accrued after 1977). Defendants argue that both claims-as well as any other claims that are actually “product liability civil actions” under § 30.900-are untimely under § 30.905 and should be dismissed.

         Judge Papak recommends that I deny Defendants' motion to dismiss the Port's tort claims on the theory that they are time-barred under the statute of limitations and the statute of repose found in § 30.905. Judge Papak determined they cannot be dismissed at this stage of the litigation as untimely because there is a question of fact regarding when the claims accrued. Because the claims cannot be dismissed as untimely, he left open the question as to whether the common-law tort claims are actually “product liability civil actions, ” as defined by § 30.900.

         Defendants object to Judge Papak's findings and recommendation for two main reasons. They argue Judge Papak (1) erred in his analysis of the rule for determining when the tort claims accrued under § 30.905; and (2) erred in failing to conclude the public nuisance and trespass claims are subject to the statutes of limitations and repose found in § 30.905.

         1. Timeliness Under the Statutes of Limitations and Repose

          Judge Papak found that there was a question of fact as to whether the Port's claims are untimely under Oregon law, and therefore, the Port's claims could not be dismissed at this stage of the litigation regardless of whether they are subject to § 30.905. More specifically, with regards to the statute of limitations, he determined that the Port is not subject to the two-year statute of limitations set out in § 30.905(1) because it is a public corporation, which he found to be exempt from the statute of limitations provision in § 30.905(1). In addition, while he found that the Port was subject to the statute of repose under § 30.905(2), he determined that there was a question of fact as to when the Port's claims accrued, which also precluded their dismissal under that theory. Defendants object to these findings and recommendations, and I consider each in turn.

         a. Statute of Limitations

         Under Oregon law, for any product liability civil actions that accrued after 1977, plaintiffs have two years to bring a product liability civil action from the time when it accrued. Or. Rev. Stat. § 30.905.[3] That provision became effective on January 1, 1978 and it “applies only to causes of action, claims, rights or liabilities accruing after December 31, 1977.” Marinelli, 696 P.2d at 2. There are essentially two issues at play concerning the statute of limitations provision. The first issue is whether the Port is exempt from the provision, either by statute or under the common-law. If the Port is not exempt, then the second issue is whether it is clear from the Complaint that the Port's claims are untimely based on the statute of limitations.

         For the reasons explained below, Defendants' Motion to Dismiss [14] the Port's product liability civil actions on the grounds that they are barred by the statute of limitations is DENIED. Defendants have leave to renew these arguments at summary judgment.

         i. Whether the Port is Exempt

         In response to Defendants' motion, the Port argued that it is exempt from the statute of limitations provision of § 30.905 because it is a public corporation and O.R.S. § 12.250 renders § 30.905 inapplicable to public corporations like the Port. Judge Papak disagreed with the Port's argument based on the Oregon Supreme Court's analysis in Shasta View Irrigation District v. Amoco Chemicals Corp., 986 P.2d 536 (Or. 1999). There, the Oregon Supreme Court specifically concluded that § 12.250, which exempts certain public entities from some statutes of limitations, did not apply to the statute of repose provision in § 30.905. Shasta View, 986 P.2d at 540. Although the court in Shasta View did not specifically consider whether § 12.250 exempted public entities from the statute of limitations provision in § 30.905, Judge Papak determined that it did not. But Judge Papak, based on his interpretation of Shasta View, found that the Port was exempt from the statute of limitations provision in § 30.905 under the common law rule that general statutes of limitations do not run against public corporations of the State of Oregon except where expressly provided. Defendants object to Judge Papak's latter finding that the Port is exempt from the statute of limitations provision in § 30.905 under Oregon common law.

         As an initial matter, I agree with Judge Papak that § 12.250 does not render the statute of limitations provision in § 30.905 inapplicable to the Port. In Shasta View, the Oregon Supreme Court considered several questions that were certified from the Ninth Circuit related to whether public corporations were subject to the statute of repose found in § 30.905. Id. at 538. While the Court did not address the exact question of how § 12.250 applies to the statute of limitations provision in § 30.905, I agree with Judge Papak that the court's analysis in Shasta View suggests that the Oregon Supreme Court would not find public corporations to be immune from the statute of limitations provision in § 30.905 based on the immunity granted under § 12.250.

         The text of O.R.S. § 12.250 states that the “exemption contained in that statute unambiguously refers to ‘the limitations prescribed in this chapter.'” Shasta View, 986 P.2d at 540 (citation omitted). Thus, “unless some other statute were to make the exemption contained in ORS 12.250 applicable to a proceeding outside ORS chapter 12, that exemption applies only to the limitations contained in chapter 12.” Id. Section 30.905's statute of limitations provision does not incorporate or refer to the exemption stated in § 12.250. Accordingly, like the Oregon Supreme Court found regarding the statute of repose, public corporations are not exempt from the timeliness requirements of the statute of limitations found in § 30.905. See Id. As such, I ADOPT Judge Papak's finding that the Port is not exempt from the statute of limitations found in § 30.905 on the basis that, as a public corporation, § 12.250 exempts the Port from being subject to such statute of limitations.

         I do not agree, however, with Judge Papak's finding that the Oregon Supreme Court held in Shasta View that public corporations are exempt from the statute of limitations provision in § 30.905 under Oregon common law. In my view, the Shasta View court did not determine whether the common law rule exempting the government from general statutes of limitations applies to the statute of limitations provision in § 30.905. The court in Shasta View simply noted that there is a common law variation of § 12.250, which is the principle that general statutes of limitations do not run against the government unless the statute “otherwise expressly provide[d].” Id. at 540. And the dissent raised the issue of how the common law rule impacts § 30.905 as a question left unanswered by the majority opinion. Id. at 549-56 (Durham, J., concurring in part and dissenting in part). Accordingly, Shasta View does not definitively resolve this question. The parties did not brief or otherwise raise this issue with Judge Papak; instead, they focused on whether the Port was exempt from the statute of limitations provision in § 30.905 under the general exemption found in § 12.250. Nor did they ...


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