United States District Court, D. Oregon
Maricela Ramirez. Plaintiff, pro se.
K. Norton, Hart Wagner, LLP, Stephanie C Kucera, Hart Wagner,
LLP, Of Attorneys for Defendant Adventist Medical Center.
M. Keating, Kelly Frances Huedopohl, and Tamara X. Arthur,
Keating Jones Hughes, P.C., Of Attorneys for Defendants Tania
Shaw, MD and Krista Swaninger, MD.
Melissa J. Bushnick and Grant D. Stockton, Brisbee &
Stockton LLC, Of Attorneys for Defendant Providence Health
& Services - Oregon doing business as Providence St.
Vincent Medical Center.
Chelsea J. Glynn and Donald E. Templeton, Dunn Carney Allen
Higgins & Tongue, LLP, Of Attorneys for Defendant Metro
West Ambulance Service, Inc.
OPINION AND ORDER
Michael H. Simon United States District Judge.
Maricela Ramirez (“Plaintiff”) brings pro
se this lawsuit against Adventist Medical Center
(“Adventist”), Tania Shaw, M.D.
(“Shaw”), Krista Swaninger, M.D.
(“Swaninger”) (collectively, “Adventist
Defendants”), and several other defendants, alleging
medical malpractice, discrimination, retaliation, breach of
fiduciary duty, fraud, and intentional infliction of
emotional distress. Plaintiff's claims against the
Adventist Defendants arise from two visits to Adventist's
Emergency Department on May 26 and 27, 2013. Plaintiff claims
that she was discriminated against and that the Adventist
Defendants concealed her true medical condition from her by
telling her that her test results were normal when they were
the Court are two motions to dismiss by the Adventist
Defendants and two additional motions by Plaintiff. For the
reasons stated below, the Adventist Defendants' motions
to dismiss are granted. Plaintiff's motions for extension
of time to complete service of process and for a
court-appointed expert witness are denied.
Adventist Defendants' Motions to Dismiss
filed a motion to dismiss, and Shaw and Swaninger filed a
separate motion to dismiss that joined in Adventist's
motion and expressly adopted the former's summary of
Plaintiff's claims, standard of review, exhibits, and
argument. The Adventist Defendants all argue that
Plaintiff's claims are precluded, that they are
time-barred, and that Plaintiff does not state a claim. Shaw
and Swaninger also move to dismiss Plaintiff's claims
based on insufficient service of process.
Claims Against Adventist and Swaninger
claims against Adventist and Swaninger are precluded.
Plaintiff has previously sued each of the Adventist
Defendants based on her two visits to Adventist in May 2013.
In July 2014 Plaintiff filed a complaint in Multnomah County
Circuit Court (“Ramirez I”). ECF 57-1.
Adventist, Shaw, and Swaninger were all named defendants in
that case. Plaintiff failed to serve Shaw in Ramirez
I, and the court dismissed Plaintiff's claims
against Shaw for want of prosecution, pursuant to Rule
7.020(2) of the Oregon Uniform Trial Court Rules. ECF 74-1.
The court then granted summary judgment in favor of the
remaining defendants. ECF 57-3 at 44. That decision was
affirmed on appeal. Ramirez v. Adventist Med. Ctr.,
273 Or.App. 821 (2015), rev. den., 358 Or. 611
(2016), cert. denied, 137 S.Ct. 74 (2016); ECF 57-4
at 46, ECF 57-3.
courts must “afford the same full faith and credit to
state court judgments that would apply in the State's own
courts.” Kremer v. Chem. Constr. Corp., 456
U.S. 461, 463 (1982). The Court is bound to “give the
same . . . preclusive effect to a state court judgment as
that judgment would have in the state courts of the state in
which it was rendered.” Noel v. Hall, 341 F.3d
1148, 1160 (9th Cir. 2003); see also Marrese v. Am. Acad.
of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985)
(explaining that federal courts must “refer to the
preclusion law of the State in which judgment was
rendered”). There are two types of preclusion: issue
preclusion (formerly known as collateral estoppel);
and claim preclusion (formerly known as res
judicata). Adventist, Shaw, and Swaninger argue that
Plaintiff's claims are barred by claim preclusion.
Adventist, Shaw, and Swaninger also argue that
Plaintiff's claims are barred by issue preclusion.
preclusion “prohibits a party from relitigating the
same claim or splitting a claim into multiple actions against
the same opponent.” Bloomfield v. Weakland,
339 Or. 504, 510 (2005). The Oregon Supreme Court has
consistently defined “claim preclusion” as
[A] plaintiff who has prosecuted one action against a
defendant through to a final judgment binding on the parties
is barred on res judicata grounds from prosecuting
another action against the same defendant where the claim in
the second action is one which is based on the same factual
transaction that was at issue in the first, seeks a remedy
additional or alternative to the one sought earlier, and is
of such a nature as could have been joined in the first
Id. at 510-11 (quoting Rennie v. Freeway
Transport, 294 Or. 319, 323 (1982)). A party is
foreclosed from litigating the same claim “on any
ground or theory of relief that the party could have
litigated in the first instance.” Id. at 511.
“[C]ourts employ a broad definition of what could have
been litigated.” Drews v. EBI Companies, 310
Or. 134, 141 (1990). “Claim preclusion does not require
actual litigation of an issue of fact or law . . . [n]or does
it require that the determination of the issue be essential
to the final or end result reached in the action, claim, or
proceeding.” Id. at 140. Claim preclusion
does, however, require that the plaintiff had, in the former
case, “[t]he opportunity to litigate . . ., whether or
not it is used.” Id. There also must be
and Swaninger were properly served in Ramirez I, and
the claims against them were dismissed with prejudice at
summary judgment. Here, Plaintiff seeks to re-litigate the
same claim. Her grievances stem out of the same
transactions-her back-to-back hospital visits in May of
2013-and are alleged against the same defendants. In
Ramirez I, Plaintiff similarly alleged medical
malpractice and discrimination. To the extent that Plaintiff
is currently attempting to bring different claims, or is
raising different theories of liability, she is still
precluded as these were “ground[s] or theor[ies] of
relief that [she] could have litigated in the first
instance.” Bloomfield, 339 Or. at 511; see
also Troutman v. Erlandson, 287 Or. 187, 201 (1979)
(“For res judicata purposes a