United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE
Shane Cruz filed this action against Defendant Hunter
Hastings, alleging injuries from an altercation between Mr.
Cruz and Mr. Hastings on March 31, 2017. The Court has
jurisdiction under 28 U.S.C. § 1332 based on diversity
Hastings has filed a Motion to Dismiss (ECF No. 23) pursuant
to Fed.R.Civ.P. 12(b)(6), alleging that the applicable
statute of limitations bars Mr. Cruz's claims. Based on
the record before the Court, Mr. Cruz failed to effectuate
proper service within the statute of limitations, so Mr.
Hasting's motion is GRANTED. However, because of the
potential applicability of equitable tolling under Oregon
law, the case is DISMISSED without prejudice and Mr. Cruz is
granted leave to file an amended complaint within 30 days of
this Opinion and Order.
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must contain sufficient factual matter that
“state[s] a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is plausible on its face when
the factual allegations allow the court to infer the
defendant's liability based on the alleged conduct.
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The
factual allegations must present more than “the mere
possibility of misconduct.” Id. at 678.
considering a motion to dismiss, the court must accept all
allegations of material fact as true and construe those facts
in the light most favorable to the non-movant. Burget v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663
(9th Cir. 2000). But the court is “not bound to accept
as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555. If the
complaint is dismissed, leave to amend should be granted
unless the court “determines that the pleading could
not possibly be cured by the allegation of other
facts.” Doe v. United States, 58 F.3d 494, 497
(9th Cir. 1995).
Cruz filed his initial complaint on January 11, 2019,
alleging assault, battery, and intentional infliction of
emotional distress. Compl., ECF No. 1. Mr. Cruz alleged that
the claim arose on March 31, 2017. Compl. ¶ 10. When a
case arises under diversity jurisdiction, such as the one
here, the Court will apply federal procedural rules and
substantive state law. Gasperini v. Ctr. for Humanities,
Inc., 518 U.S. 415, 427 (1996). “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).
Accordingly, Mr. Cruz's claims are subject to a two-year
statute of limitations, giving him until March 31, 2019 to
commence this action. Or. Rev Stat. § 12.110. In Oregon,
the case commences on either the date the case is filed, if
service is effectuated within 60 days or, if service is
effectuated outside the 60-day grace period, then the case is
commenced on the date proper service is achieved. Or. Rev.
Stat. § 12.020(1)-(2).
Cruz was required to properly serve Mr. Hasting's under
Fed.R.Civ.P. 4 but was still subject to Oregon's time
limitation provisions. See Pelster ex rel Boyer v.
Walker, 185 F.Supp.2d 1174, 1179 (D. Or. 2001)
(“Even though Rule 4(m) gives the court authority to
extend time to effect service of a complaint, Rule 4(m) does
not change the substantive time limitation provisions of
state law.”). Mr. Cruz originally attempted to serve
Mr. Hasting's on February 6, 2019. Certificate of Service
2, ECF No. 7. The process server hired by Mr. Cruz left the
summons at Mr. Hasting's residence with a
“Jennifer, female occupant of the home.”
Id. However, it appears that “Jennifer”
was not a resident, but rather a dogwalker hired by Mr.
Hasting's roommate. Decl. of Hunter Hastings ¶ 4,
ECF No. 14. While proper service is possible by leaving a
copy of the summons and complaint at the defendant's
“usual place of abode with someone of suitable age and
discretion, ” that someone must “reside
there.” Fed.R.Civ.P. 4(e)(2)(B) (emphasis added);
see also U.S. v. Rose, 437 F.Supp.2d 1166, 1172 (S.
D. Cal. 2006) (“Where substitute service is used, the
person with whom the summons is left must also be a resident
of the ‘usual place of abode.'”). Because
“Jennifer” was not a resident of the home, the
service attempt on February 6, 2019 was defective.
to the Court's Order (ECF No. 15) requiring Mr. Cruz to
re-effectuate service of process, Mr. Cruz properly served
Mr. Hasting's on June 5, 2019. Acceptance of Service, ECF
No. 17. Under Oregon law and without anything more, this case
commenced outside the applicable two-year statute of
limitations. Or. Rev. Stat. §§ 12.020, 12.110.
response to Mr. Hasting's Motion to Dismiss, Mr. Cruz
filed an Amended Complaint (ECF No. 24) on November 20, 2019
but failed to obtain leave of court or Defendant's
consent in writing, violating Fed.R.Civ.P. 15(a)(2).
Therefore, the Amended Complaint is STRICKEN and was not
considered when deciding Mr. Hasting's Motion to Dismiss.
Mr. Cruz's Response to the Motion to Dismiss (ECF No. 25)
failed to adhere to the two-week deadline imposed by Local
Rule 7-1(e)(1) and Mr. Cruz never moved for a time extension.
Mr. Hasting requested that the Court strike Mr. Cruz's
response as untimely. Reply to Mot. to Dismiss 2, ECF No. 26.
This is not the first time that Mr. Cruz has failed to
litigate this case diligently. See Or. to Show
Cause, ECF No. 6. Nevertheless, while Mr. Cruz's response
was filed 12 days late, the Court declines to strike Mr.
Cruz's response as untimely. Pincay v. Andrews,
389 F.3d 853, 859 (9th Cir. 2004).
there is still a possibility that the applicable statute of
limitations is tolled pursuant to Or. Rev. Stat. §
12.150, Mr. Cruz is granted leave to file an amended
complaint within 30 days of this Opinion and Order.
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