United States District Court, D. Oregon
STEVEN B. ANDERSEN, an individual, Plaintiff,
PORTLAND SATURDAY MARKET, a nonprofit corporation, & LISA GUGINO, an individual, Defendants.
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
Plaintiff Steven B. Andersen brings this breach of contract
and civil rights action against Defendants Portland Saturday
Market and Lisa Gugino, executive director of Portland
Saturday Market. Defendants now move to dismiss this action.
For the reasons explained below, the Court grants
Defendants' Motion to Dismiss and dismisses the Amended
Portland Saturday Market is a “non-profit ‘mutual
benefit with members organization' incorporated in 1974
pursuant to ORS Chapter 65.” Defs. Mot. Dismiss 2, ECF
26; see Anderson Decl. ¶ 5, Ex. 2 (Oregon
Secretary of State Business Entity Data),  ECF 27. Plaintiff
was a member of Defendant Portland Saturday Market between
April 8, 2012, and October 13, 2015, when his membership was
terminated. Am. Compl. 3, ECF 12. Plaintiff's membership
was allegedly terminated because of his conduct towards other
members and employees of the market, including the alleged
harassment of “[a] former friend and fellow
vendor.” Id. at 3, 5. During this process,
Plaintiff alleges he was not given any “opportunity to
learn what conduct was considered by the board as being so
inappropriate as to warrant a dismissal.” Id.
at 3. As a result, Plaintiff alleges that Defendants breached
their membership agreement with Plaintiff and violated his
civil rights-including “due process, discrimination and
the right to confront and cross examine accusers”-when
they dismissed Plaintiff. Id. at 2. He “seeks
damages resulting from loss of income associated with his
dismissal from PSM.” Id. at 9.
November 20, 2017, the Court granted Plaintiff's
application to proceed in forma pauperis but
dismissed his Complaint pursuant to 28 U.S.C. §
1915(e)(2) for failure to state a claim upon which relief can
be granted. Opinion & Order, ECF 11. Plaintiff filed his
Amended Complaint on December 12, 2017. On March 26, 2018,
Defendants moved to dismiss this action pursuant to
Fed.R.Civ.P. 12(b)(6), arguing that Plaintiff's claims
are barred by the applicable statute of limitations. Defs.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of the claims. Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). “All
allegations of material fact are taken as true and construed
in the light most favorable to the nonmoving party.”
Am. Family Ass'n, Inc. v. City & Cnty. of
S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). To survive a
motion to dismiss, a complaint “must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face[, ]” meaning “the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). In other words, a complaint must contain
“well-pleaded facts” that “permit the court
to infer more than the mere possibility of
misconduct[.]” Id. at 679.
the court need not accept conclusory allegations as truthful.
See Warren v. Fox Family Worldwide, Inc., 328 F.3d
1136, 1139 (9th Cir. 2003) (“[W]e are not required to
accept as true conclusory allegations which are contradicted
by documents referred to in the complaint, and we do not
necessarily assume the truth of legal conclusions merely
because they are cast in the form of factual
allegations”) (internal quotation marks, citation, and
alterations omitted). A motion to dismiss under Rule 12(b)(6)
will be granted if a plaintiff alleges the
“grounds” of his “entitlement to
relief” with nothing “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action[.]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “Factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact)[.]” Id. (citations and footnote
statute-of-limitations defense, if ‘apparent from the
face of the complaint, ' may properly be raised in a
motion to dismiss.” Seven Arts Filmed Entm't
Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254
(9th Cir. 2013) (quoting Conerly v. Westinghouse Elec.
Corp., 623 F.2d 117, 119 (9th Cir.1980)). “If the
allegations, for example, show that relief is barred by the
applicable statute of limitations, the complaint is subject
to dismissal for failure to state a claim ….”
Jones v. Bock, 549 U.S. 199, 215 (2007); see
also Supermail Cargo, Inc. v. United States, 68 F.3d
1204, 1206-07 (9th Cir. 1995) (“A motion to dismiss
based on the running of the statute of limitations period may
be granted only if the assertions of the complaint, read with
the required liberality, would not permit the plaintiff to
prove that the statute was tolled.” (internal
quotations and citations omitted)). However, “a
complaint cannot be dismissed unless it appears beyond a
doubt that plaintiff can prove no set of facts that would
establish the timeliness of the claim.” Supermail
Cargo, 68 F.3d at 1207 (declining to dismiss a complaint
where the equitable tolling doctrine was applicable). Where
claims are barred by the statute of limitations, the trial
court may dismiss the plaintiff's claims without leave to
amend because the amendment would be futile. Platt Elec.
Supply Inc. v. EOFF Elec. Inc., 522 F.3d 1049, 1060 (9th
must liberally construe pro se pleadings. Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004).
Additionally, a court cannot dismiss a pro se complaint
without first explaining to the plaintiff the deficiencies of
the complaint and providing an opportunity to amend.
Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.
1992). Dismissal of a pro se complaint without leave to amend
is proper only if it is clear that the deficiencies of the
complaint could not be cured by amendment. Lucas v.
Department of Corrections, 66 F.3d 245, 248 (9th Cir.
the crux of Plaintiff's claims is that he was wrongfully
terminated from Portland Saturday Market, Defendants argue
that Plaintiff's complaint-filed September 25, 2017-is
barred by the one-year statute of limitations set forth in
Oregon Revised Statute (“ORS”) 65.1679(4). Defs.
Mot. 4. Plaintiff responds that the longer statute of
limitations for breach of contract claims applies in this
action. Pl. Mem. Opp'n. 2, ECF 30. This Court agrees with
65.167 provides specific procedures that public benefit or
mutual benefit corporations must follow in terminating,
expelling, or suspending members. ORS 65.167(1). This statute
provides a one-year statute of limitations for bringing a
claim challenging a dismissal from such an organization:
“Any proceeding challenging an expulsion, suspension or
termination, including a proceeding in which defective notice
is alleged, must be commenced within one year after the
effective date of the expulsion, suspension or
termination.” ORS 65.167(4). By contrast, the statute
of limitations for breach of contract and tort actions in
Oregon is six and two years respectively. ORS 12.080; ORS
12.110. However, ORS 12.010 provides that “[a]ctions
shall only be commenced within the periods prescribed in this
chapter, after the cause of action shall have accrued,
except where a different limitation is prescribed by
statute.” (emphasis added).
on Wiederhorn v. Multnomah Athletic Club, 215
Or.App. 392 (2007), Defendants contend that the shorter
statute of limitations in ORS 65.167 is applicable to this
case. In Wiederhorn, the Court of Appeals addressed
the very issue presented here: which statute of limitations
applies to tort and contract claims challenging the expulsion
of a member from an organization governed by ORS Chapter 65.
Id. a 394. There, the plaintiff-a member of the
defendant Multnomah Athletic Club-appealed the dismissal of
his complaint pursuant to ORS 65.167 and argued that the
longer six-year statute of limitations for contract claims
and two-year statute for tort claims applied to his case.
Id. In interpreting the scope ORS 65.167, the Court
of Appeals found that “‘any proceeding
challenging an expulsion' means ‘every and all
civil, criminal, administrative and investigatory actions
questioning and disputing an expulsion.'”
Id. at 397. The Court further noted that the
personal injury and tort statutes of limitation described in
Chapter 12 did not apply “‘where a different
limitation is prescribed by statute.'”
Id. at 399 (citing ORS 12.010) (emphasis in
original). Because ORS 65.167 ...