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Andersen v. Portland Saturday Market

United States District Court, D. Oregon

June 11, 2018

STEVEN B. ANDERSEN, an individual, Plaintiff,
PORTLAND SATURDAY MARKET, a nonprofit corporation, & LISA GUGINO, an individual, Defendants.

          OPINION & ORDER


         Pro se 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 Complaint.


         Defendant 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), [1] 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.

         On 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. Mot. 4-6.[2]


         A 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.

         However, 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 omitted).

         “A 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 Cir. 2008).

         Courts 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. 1995).


         Because 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 Defendants.

         ORS 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).

         Relying 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 ...

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