Opinion
3:22-cv-01274-YY
08-28-2023
MIRIAM GHERMAN, Plaintiff, v. DYLAN CLARK, Defendant.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
On June 5, 2022, plaintiff Miriam Gherman filed an action in Multnomah County Circuit Court against defendant Dylan Clark, asserting claims of battery, assault, intentional infliction of emotional distress, and negligence arising from incidents that allegedly occurred between October 31, 2018, and June 14, 2020. See Notice Removal, Ex. A (Compl.), ECF 1. Defendant removed the case to this court, and has filed a motion to dismiss (ECF 11) pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that any claims arising from incidents that occurred prior to June 5, 2020, are time-barred under O.R.S. 12.110(1), which prescribes a two-year statute of limitations for torts. Plaintiff contends that her claims are not time-barred because O.R.S. 147.065 contains a five-year statute of limitations that applies to actions arising from the commission of “compensable crimes.”
Defendant's motion to dismiss should be granted with respect to any incidents that allegedly occurred before June 5, 2020. As defendant correctly contends, O.R.S. 147.065 does not allow for all actions arising out of “compensable crimes” to be filed within five years. Rather, the five-year period is tied to the formation of an escrow account under Oregon's “Son of Sam” law, and no such escrow account has been created here.
Plaintiff otherwise concedes that she has not alleged sufficient facts to support claims 34, 35, and 36, which are based on a June 14, 2020 incident. Pursuant to that concession, those claims should also be dismissed.
I. Motion to Dismiss Standards
To survive a motion to dismiss under Rule 12(b)(6), the complaint must contain sufficient non-conclusory factual allegations to state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This requires the plaintiff to plead facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. While a complaint need not contain “detailed factual allegations,” a pleading that offers only “labels and conclusions” or a “formulaic recitation of the elements of a cause of action” is not sufficient. Id. (quoting Twombly, 550 U.S. at 555). In the absence of a cognizable legal theory or sufficient factual allegations to support a cognizable legal theory, the claim should be dismissed. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). The court must accept all allegations of material facts as true and construe them in the light most favorable to the plaintiff. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009).
“A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when ‘the running of the statute is apparent on the face of the complaint.'” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). Dismissal is appropriate where the plaintiff cannot prove facts that would establish the timeliness of the complaint. Id. (citing Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)).
II. Law Regarding Statutory Interpretation
The Oregon Supreme Court has not interpreted the scope of the statute at issue, O.R.S. 147.065. In the absence of controlling case law by the Oregon Supreme Court, this court's task is to determine how that court would construe the statute. Nike, Inc. v. McCarthy, 379 F.3d 576, 581 (9th Cir. 2004).
“[T]he ‘cardinal rule' of statutory interpretation [is] that a court ‘shall pursue the intention of the legislature if possible.'” State v. Gaines, 346 Or. 160, 165 (2009) (quoting Holman Trf. Co. et al v. Portland et al., 196 Or. 551, 564 (1952)). The “first step” in this inquiry is to examine “the text and context of the statute, which are the best indications of the legislature's intent.” State v. Walker, 356 Or. 4, 13 (2014); see also Gaines, 346 Or. 160, 171 (2009) (“[A]s this court and other authorities long have observed, there is no more persuasive evidence of the intent of the legislature than ‘the words by which the legislature undertook to give expression to its wishes.'”) (quoting U.S. v. American TruckingAss'ns., 310 U.S. 534, 54244 (1940)).
The court gives “‘words of common usage their plain, natural, and ordinary meaning[s],' and . . . give[s] words that have well-defined legal meanings those meanings.” Bergerson v. Salem-Keizer Sch. Dist., 341 Or. 401, 413 (2006) (quoting Norden v. Water Resources Dep't., 329 Or. 641, 645 (2000)). Where the legislature has not defined a term, the court may rely on the dictionary definition of the term to determine the legislature's intended meaning. State v. Branch, 362 Or. 351, 357 (2018) (“[W]e frequently consult dictionary definitions to determine the meaning of such terms ‘on the assumption that, if the legislature did not give the term a specialized definition, the dictionary definition reflects the meaning that the legislature would naturally have intended.'”). “Context includes other provisions of the same statute, the session laws, and related statutes.” Stevens v. Czerniak, 336 Or. 392, 401 (2004) (citations omitted). “It also includes ‘the preexisting common law and the statutory framework within which the law was enacted.'” Id. (quoting Denton and Denton, 326 Or. 236, 241 (1998)).
Next, “even if the court does not perceive an ambiguity in the statute's text,” the court may consider the statute's legislative history “where [it] appears useful to the court's analysis.” Gaines, 346 Or. at 172. The evaluative weight given to the legislative history is for the court to determine; however, the Oregon Supreme Court has cautioned that “a party seeking to overcome seemingly plain and unambiguous text with legislative history has a difficult task before it.” Id. Lastly, if “the legislature's intent remains unclear after examining text, context, and legislative history, the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.” Id.
“As a general rule,” when interpreting a statute, the court should “attempt to do so in a manner that gives effect to all of the provisions of the statute where possible.” Matter of Comp. of Ward, 369 Or. 384, 398 (2022). In other words, the court should “generally attempt to avoid a statutory construction that creates redundancy in the way the statute is read.” Id. (citing Blachana, LLC v. Bureau of Labor and Industries, 354 Or. 676, 692 (2014) (“[R]edundancy, of course, is a consequence that this court must avoid if possible.”); State v. Kellar, 349 Or. 626, 636 (2011) (“Defendant's interpretation results in a redundancy, something that we seek to avoid in interpreting statutes.”)). Finally, the court is “responsible for determining the correct meaning of a statutory provision, regardless of whether that interpretation is asserted by the parties.” Scott v. Dep't of Revenue, 358 Or. 795, 801 (2016).
III. Analysis of O.R.S. 147.065
The court begins with the text of O.R.S. 147.065, which provides:
Notwithstanding ORS 12.110 the victim of any compensable crime as defined in ORS 147.005 or the victim's representative may bring an action at any time within the five-year period after the commission of the compensable crime.
“Compensable crimes” are defined as the “abuse of corpse in any degree or an intentional, knowing, reckless or criminally negligent act that results in injury or death of another person and that, if committed by a person of full legal capacity, would be punishable as a crime in this state.” O.R.S. 147.005(4).
The term “action” is not defined in O.R.S. 147.065. Thus, the court looks to the plain, natural, and ordinary meaning of “action,” which is defined as (1) “a legal proceeding by which one demands or enforces one's right in a court of justice,” and (2) “a judicial proceeding for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” Webster's Third New Int'l Dictionary 21 (unabridged ed. 1993). This is the same as the term's “well-defined legal meaning,” which is “[a] civil . . . judicial proceeding.” See Action, Black's Law Dictionary (11th ed. 2019); see also FED. R. CIV. P. 2 (“There is one form of action-the civil action.”); Bergerson, 341 Or. at 413 (“[W]e give words that have well-defined legal meanings those meanings.”). Thus, the text of O.R.S. 147.065 indicates that the word “action” means a civil action.
The Oregon Supreme Court “consults Webster's Third more often than any other dictionary.” Kohring v. Ballard, 355 Or. 297, 304 n.2 (2014).
This interpretation is supported by the context of O.R.S. 147.065. Context can be found in “the same chapter in which a provision has been codified.” Oakleigh-McClure Neighbors v. City of Eugene, 269 Or.App. 176, 183 (2015) (explaining that the “‘same statute' can refer to the same chapter in which a provision has been codified”). Elsewhere in chapter 147, specifically O.R.S. 147.281(1), the term “action” is defined as “an action, suit or proceeding.” Although this definition of “action” applies when “used in ORS 147.281 to 147.298,” the fact the legislature chose to define “action” in this way in the same chapter is probative of its intent. Similarly, the term “action” is used as part of the term “civil action” in another section of chapter 147, i.e., O.R.S. 147.275(3)(b). And O.R.S. 147.275(8) recognizes that “judgments,” which are the culmination of a civil action, are obtained by “victims or their representatives,” i.e., the same terms that are used in O.R.S. 147.065 to define those who “may bring an action.” Thus, the text and context of O.R.S. 147.065 indicate that, when the legislature chose the word “action,” it meant a civil action.
Defendant argues, incorrectly, that the term “action” in O.R.S. 147.065 does not mean a civil action but instead “clearly refers to the filing of an application for compensation through the Oregon DOJ” pursuant to O.R.S. 147.105. Reply 3, ECF 18 (citing O.R.S. 147.105(1)); see also id. at 4 (“O.R.S. 147.065 simply provides an independent five-year statute of limitations for the victim of a compensable crime to . . . file an application with the Oregon DOJ[.]”). In 1977, the Oregon legislature enacted statutes creating the crime victims' compensation program. The program is administered by the Department of Justice and funded by the Criminal Injuries Compensation Account, which must be “continuously appropriated for.” O.R.S. 147.225; see O.R.S. 31.735 (providing that 60 percent of punitive damages awards must be deposited in the Criminal Injuries Compensation Account of the Department of Justice Crime Victims' Assistance Section, “and may be used only for the purposes set forth in ORS chapter 147”).
At that time, Oregon had joined a growing movement among states to establish crime victim compensation programs. See M. Suzanne Cavanaugh, Compensation for Crime Victims (1984) (describing that 30 states had enacted such programs) (available at https://www.everycrsreport.com/files/19840427IB7401409eb852a8da177d5eee1781f4e471f55 e92f5c67.pdf).
The term “application” is not defined in O.R.S. 147.105. But the text and context of O.R.S 147.105 indicate that an “application” is not the same as an “action,” and those terms are not interchangeable for purposes of interpreting O.R.S. 147.065. O.R.S. 147.105(1) states that an application must be submitted “under oath on a form furnished by the Department of Justice.” This comports with the plain, natural, and ordinary meaning of “application,” which means “request/petition” or “a form used in making a request.” Application, https://www.merriam-https://www.merriam-webster.com/ dictionary/application (last visited July 12, 2023) (capitalization omitted); see also Webster's Third New Int'l Dictionary 105 (unabridged ed. 1993) (defining “application” as a “request, petition,” such as “an [application] for a position”) (capitalization omitted).
Further support is found in how the term “applicant” is defined in the context of O.R.S. 147.105. “As used in” O.R.S. 147.105, an applicant includes victims and their dependents and survivors, but also “any person eligible for compensation under ORS 147.025”:
(a) Any victim of a compensable crime who applies to the Department of Justice for compensation under ORS 147.005 to 147.367;
(b) Any person who was a dependent of a deceased victim at the time of the death of that victim;
(c) Any person who is a survivor of a deceased victim; or
(d) Any person eligible for compensation under ORS 147.025.
O.R.S. 147.005(1). O.R.S. 147.025 permits compensation for:
(1) the victim's medical and funeral expenses to any person who “paid or incurred such expenses,” O.R.S. 147.025(1);
(2) counseling expenses incurred by a friend or acquaintance who discovered the victim's corpse, O.R.S. 147.025(2); and
(3) counseling, transportation and lodging expenses for a “personal representative,” i.e., a “person selected by the victim, survivor or dependent to attend hearing or oral argument on behalf of the victim, survivor, or dependent,” O.R.S. 147.025(3).
O.R.S. 147.025(3) states that “personal representative” is “defined by the Department of Justice by rule,” and the pertinent Oregon administrative rule defines the term as a “person selected by the victim, survivor or dependent to attend hearing or oral argument on behalf of the victim, survivor, or dependent.” O.A.R. 137-076-0010; see also O.R.S. 147.425(d) (separately defining “personal representative” as a person selected by a victim of a person crime who is at least 15 years old “to accompany the victim of a crime to certain phases of an investigation and prosecution”).
Thus, “applicants” include victims, dependents, survivors, and other people who have incurred compensable expenses. In contrast, under O.R.S. 147.065, only “the victim . . . or the victim's representative may bring an action.” Defendant's suggestion that O.R.S. 147.065 somehow pertains to the filing of an application cannot be reconciled with the fact that O.R.S 147.105 permits a much broader range of people to submit applications for compensation.
Additionally, the time limitations for filing an application are otherwise set by statute in chapter 147, and those time limitations have no apparent relationship to the five-year period set forth in O.R.S. 147.065. For example, pursuant to O.R.S. 147.015(1)(g), an application for an award of compensation must be filed “within one year of the date of injury to the victim” or with “further extension of time as the department, for good cause shown, allows.” And, depending on the nature of the crime and the age of the victim, claims for compensation expire three or five years after the date of the “determination order” issued by the Department of Justice. O.R.S. 147.035(9), (10); see also O.R.S. 147.135 (describing a determination order).
O.R.S. 147.135 states that “[a]fter processing the application filed under O.R.S. 147.105, the Department of Justice shall enter an order stating . . . [i]ts findings of fact[] and its decision as to whether or not compensation is due[.]”
The parties produced, and the court is aware of, only one case interpreting O.R.S. 147.065, Wagner v. Manzo, No. 08C16705 (Marion Cty. Cir. Ct. 2008). In Wagner, a Marion County Circuit Court judge determined that O.R.S. 147.065 applied to a sexual assault claim and, finding that the complaint was filed within five years of the alleged sexual assault, denied the defendant's motion to dismiss, which was premised on O.R.S. 12.110. Riddell Decl., Ex. 2, ECF 17. Plaintiff argues this “precedent demands” the denial of defendant's motion to dismiss. Resp. 7, ECF 16. Defendant points out that the plaintiff in Wagner, prior to filing her civil action, obtained a determination order from the Department of Justice. Reply 8 n.5, ECF 18. At the hearing on this motion to dismiss, plaintiff volunteered to file an application with the crime victim compensation program, if doing so meant that the five-year period in O.R.S. 147.065 would apply to this case.
But neither the plaintiff's actions in Wagner nor the Marion County Circuit Court's order bind the court here. The Wagner letter opinion contains no analysis as to whether or how the five-year period in O.R.S. 147.065 is contingent upon the filing of an application pursuant to O.R.S. 147.105 or the issuance of a determination order by the Department of Justice. As discussed, nothing in chapter 147 indicates that the O.R.S. 147.065 five-year period to “bring an action” is in any way related to the filing of an application with the crime victims compensation program. Compensation from the program is not related to the crime victim obtaining a judgment through a civil action. Rather, the qualifying circumstances for obtaining compensation are well-defined and limited by statute, including a $47,000 “maximum amount of compensation that may be awarded, in aggregate, to the victim and the survivors and dependents of a deceased victim.” O.R.S. 147.035(1)(b). These are not the types of conditions that are typically imposed on civil actions for damages arising out of tort claims involving physical injury or death. In fact, the only way in which an application for compensation is even remotely connected to a civil action is that the Department of Justice may put a “lien upon the amount of any judgment in favor of the applicant or recipient . . . and upon any amount payable to the applicant . . . under a settlement or compromise” to recoup compensation that the program has paid. O.R.S. 147.285. Thus, to the extent either party argues that the five-year period in O.R.S. 147.065 is related to the filing of an “application” with the crime victim compensation program, that argument lacks merit.
The Oregon Bar Association has published a practice aid on statutes of limitations in Oregon. Oregon Statutory Time Limitations (Professional Liability Fund & OSB Legal Publications 2022) (“Redbook”). O.R.S. 147.065 is first mentioned in the subsection titled “Assault and Battery” under “Statute of Limitations” with the language: “If the alleged conduct constitutes a ‘compensable crime' under ORS 147.005(4) and the victim or the plaintiff has satisfied the conditions of ORS 147.015, the action may be commenced within five years after the commission of the compensable crime.” Id. § 7.6A; see also § 7.18A. But to the extent the Redbook connects the five-year period in O.R.S. 147.065 to the filing of an application with the crime victims compensation program, the editors' reasoning is opaque and at odds with other provisions of chapter 147, as discussed above. As such, the Redbook does not offer persuasive support for either parties' position.
Defendant also argues, more convincingly, that O.R.S. 147.065, in conjunction with O.R.S. 147.275, “simply provides an independent five-year statute of limitations for the victim of a compensable crime to . . . file a civil suit to obtain the profits that were reaped by the perpetrator in connection with the compensable crime, but only after the establishment of an escrow account and the conviction of the perpetrator.” Reply 4, ECF 18. In fact, O.R.S. 147.065 was not enacted as part of the crime victim compensation program enacted in 1977, but as part of the bill that created Oregon's “Son of Sam” law in 1985. “The purpose of ORS 147.275 is to ensure that a victim of a crime may recover damages or judgments from profits earned by the convicted person from the sale of the story of the criminal act.” Danmark Pub., Inc. v. Dep't of Just. of State of Or., 108 Or.App. 382, 386 (1991). O.R.S. 147.275 requires that when a person or legal entity contracts with, or pays or delivers “the proceeds of a compensable crime to any individual charged with or convicted of committing such a crime,” the person or legal entity must pay or deliver the proceeds to the Department of Justice, which holds the proceeds in an escrow account. O.R.S. 147.275(1), (2).
See Gregory Sarno, Validity, construction, and application of “Son of Sam” laws regulating or prohibiting distribution of crime-related book, film, or comparable revenues to criminals, 60 A.L.R.4th 1210 (originally published in 1988) (recognizing that “New York was the first state to enact a ‘Son of Sam' statute,” and that many states, “as well as the federal government, have some form of legislation restricting the distribution of a crime-related book, motion picture, and comparable revenues to persons accused or convicted of crime,” much of which “has been patterned on the New York statute”); see also Tracey B. Cobb, Making A Killing: Evaluating the Constitutionality of the Texas Son of Sam Law, 39 Hous. L. Rev. 1483, 1485 (2003) (observing that over forty states and the federal government have enacted such laws).
Under O.R.S. 147.275(3)(b), a “victim or dependent of a deceased victim” is “entitled to payment of proceeds from the escrow account” if:
[w]ithin five years after the establishment of the escrow account, the person commences a civil action against such individual in a court of competent jurisdiction and receives a money judgment for damages suffered as a result of the crime.
O.R.S. 147.275(3)(b) also includes the language “and receives a money judgment for damages suffered as a result of the crime”; however, it does not appear that a money judgment must be obtained within five years. Support for this conclusion can be found in O.R.S. 147.275(6), which states that “[u]pon a showing by a convicted individual . . . that five years have elapsed from the establishment of the escrow account . . . and that no civil actions by victims or dependents of deceased victims . . . have been commenced,” the escrow proceeds shall be returned to the individual.
If criminal charges against the individual are dismissed or the individual is acquitted, or five years have elapsed and no civil actions by victims or dependents of deceased victims have commenced, the money is returned to the individual. O.R.S. 147.275(5), (6).
The language in O.R.S. 147.275 differs from the language in O.R.S. 147.065 in that O.R.S. 147.275 states the five-year period for commencing a civil action begins to run from the “establishment of the escrow account,” while O.R.S. 147.065 states the five-year period to bring a civil action begins to run from the “commission of the compensable crime.” The five-year period in O.R.S. 147.065 is subsumed to some extent within the five-year period in O.R.S. 147.275; because an escrow account can only be established after a compensable crime has been committed, the five-year period in O.R.S. 147.065 will always expire before the five-year period under O.R.S. 147.275 does. Arguably, the statutes are somewhat redundant in this regard, but that “a proposed interpretation of a statute creates some measure of redundancy is not, by itself, necessarily fatal. Redundancy in communication is a fact of life and of law.” State v. Cloutier, 351 Or. 68, 97 (2011). Again, the “cardinal rule” is to “pursue the intention of the legislature if possible.'” Gaines, 346 Or. at 165.
Here, legislative history provides the key to understanding the legislature's intent. The legislature history shows that this statutory scheme was modeled after New York's Son of Sam law enacted in 1977, which, at the time, had been adopted in many other states and by federal law. Riddell Am. Supp. Decl., ECF 26 at 79 (testimony by Representative Larry Hill observing that “[g]enerally most state ‘Son of Sam' laws have language similar to New York's”).
For ease of reference, the legislative history, which has been produced by plaintiff in its entirety, is referred to by ECF page number.
In Barrett v. Wojtowicz, 66 A.D.2d 604, 610, 414 N.Y.S.2d 350 (1979), a New York appellate court wrestled with the same “apparent conflict” that exists between O.R.S. 147.065 and O.R.S. 147.275 when interpreting New York's original “Son of Sam” statute. Similar to Oregon's statutory scheme, subsection one of the New York statute stated that “the victim must bring a civil action ‘within five years of the date of the crime'” but subsection four stated that “notwithstanding” the general statute of limitations for torts, “the five year period provided for in subdivision one of this section shall not begin to run until an escrow account has been established.” Id. The court recognized that “[o]bviously no escrow fund could be established until an appreciable period after the crime.” Id. The court further observed:
Since subdivision 4 starts with, “Notwithstanding any inconsistent provision of the civil practice law and rules with respect to the timely bringing of an action”, it can be rationally argued that its purpose was to increase the Statute of Limitations for assault and false imprisonment from one year to five years where the victim seeks recovery from moneys received by the assaulter for the depiction or narration of the crime. However, this would still not explain away the statement in subdivision 4 that the five-year period provided for in subdivision 1 of this section “shall not begin to run until an escrow account has been established.”
Further, it seems to be too much of a coincidence that on the one hand, the limitation period for bringing the action after “the date of the crime” (subd 1) and on the other, the period lapsing from the establishment of the escrow account (subds 2, 3, 4) is five years for each. The common sense explanation would seem to be that the drafters of the legislation intended to have everything mesh, but failed to realize that they were not expressing that intent.Id. at 610-11 (emphasis in original). Ultimately, the court did not have to resolve the issue because the New York legislature corrected the statute in 1978 to properly reflect its intent, clarifying that both five-year periods were tied to the “establishment of an escrow account.” Barrett is nevertheless informative because it helps to explain the intent behind New York's “Son of Sam law,” which Oregon modeled its statutory scheme after in 1985.
For reasons unknown, when the Oregon legislature enacted its “Son of Sam” law in 1985, it adopted the 1977 version of the New York statute rather than the corrected 1978 version. Nevertheless, legislative history otherwise supports the conclusion that the five-year period in O.R.S. 147.065 pertains solely to the filing of a civil action for purposes of recouping funds from an escrow account. Representative Larry Hill, the sponsor of Oregon's “Son of Sam” legislation, recognized that “[u]nder these laws, the government acts as an escrow agent, usually under a five-year escrow account,” and victims could access the funds upon “obtaining ‘money judgments.'” Riddell Am. Supp. Decl., ECF 26 at 79-80. Representative Hill further explained that the five-year period was created so that victims had time to “perfect their rights” to the escrow proceeds “by filing tort actions”:
The statute specifically benefits those victims who failed to bring a tort action during the original statutory period because the costs outweighed the potential for satisfaction of a judgment. These victims may be difficult to reach. This five-year period gives the state a reasonable opportunity to locate and notify the victims of their rights to the escrow proceeds and for the victims to perfect their rights by filing tort actions. This escrow period is essential to accomplish the state's intent in this statute.Id. at 85 (emphasis added). Representative Hill specifically disclaimed that the bill attempted to “compensate victims in general”; rather, the bill provided a means for a victim to “raise his claims to the escrow account” and was concerned with the “special nature of the funds being attached.” Id. at 80; see also id. (“The purpose of HB 3030 is to ensure liability from the profits which the offender indirectly receives from his crime.”). During a public hearing/work session on June 14, 1985, Senator Margie Hendriksen also stated:
[T]he fund remains for five years and then the victim or the estate of the victim can apply for those funds if they have a judgment.Id. at 71. “She emphasized that the victims need to obtain a judgment against the convicted offender.” Id.
The legislative history is also notable for what it does not contain. Specifically, there is nothing in the legislative history to indicate the legislature intended to generally expand the statute of limitations to five years, beyond giving victims of compensable crimes additional time to obtain a judgment in order to access funds in the escrow account. In fact, throughout the legislative history, the only context in which judgments are discussed is in conjunction with the recovery of profits from an escrow account. Id. at 28, 79, 80, 85, 86, 87. That is also the only context in which a “five year statute of limitations” is ever discussed-during a public hearing/work session, Senator Hendriksen observed “[t]here is a five-year statute of limitations after the account is established for the victim to file for a judgment.” Id. at 71.
Plaintiff argues the fact that O.R.S. 147.065 contains the language “[n]otwithstanding ORS 12.110” shows the legislature intended for victims of compensable crimes to have five years to bring civil actions, irrespective of whether an escrow account has been established. But to read the statute in this way would wrongly view O.R.S. 147.065 in isolation, and ignore legislative intent, along with the context and the statutory scheme as a whole. Moreover, the New York statute upon which Oregon law is modeled similarly used the term “notwithstanding” to indicate that the five-year period applied despite “any inconsistent provision of the civil practice law and rules with respect to the timely bringing of an action”; however, this does not negate the fact that the five-year period applies only if an escrow account has been established. Barrett, 66 A.D.2d at 609.
Indeed, the legislature has used the same “notwithstanding” language to expand the two-year statute of limitations for actions involving other kinds of criminal conduct. See O.R.S. 12.117 (extending statute of limitations for child abuse actions “[n]otwithstanding ORS 12.110”); O.R.S. 12.118 (extending statute of limitations for sexual assault cases “[n]otwithstanding ORS 12.110”).
“Son of Sam” laws enacted in other states similarly tie an extended statute of limitations to the creation of an escrow account. For example, Washington allows for recovery from an escrow account “provided that such victim, within five years of the date of the establishment of such escrow account, brings a civil action in a court of competent jurisdiction and recovers a money judgment for damages against such person or his or her representatives.” R.C.W. 7.68.200. Washington law also uses the term “notwithstanding” to denote that “[n]otwithstanding any inconsistent provision of the civil practice and rules with respect to the timely bringing of an action, the five year period provided for in RCW 7.68.200 shall not begin to run until an escrow account has been established.” R.C.W. 7.68.260. California's statute, which has otherwise been held unconstitutional under the First Amendment, creates a trust that continues “until five years after the time of payment of the proceeds to the felon or five years after the date of conviction, whichever is later,” and provides that “[i]f an action is filed by a beneficiary to recover his or her interest in a trust within those time limitations, the trust character of the property shall continue until the conclusion of the action.” Cal. Civ. Code § 2225; see also Fasching v. Kallinger, 211 N.J.Super. 26, 48, 510 A.2d 694, 706 (App. Div. 1986) (citing a former New Jersey statute that stated: “Notwithstanding any inconsistent provision of the civil practice law and rules with respect to the timely bringing of an action, the five year period provided for in this act shall not begin to run until an escrow account has been established.”). The context and legislative history of O.R.S. 147.065 do not indicate that the Oregon legislature intended to deviate from the New York model, which has been followed by other states, when it enacted its “Son of Sam” legislation in 1985.
Here, no escrow account has been established pursuant to O.R.S. 147.275. Therefore, O.R.S. 12.110 rather than O.R.S. 147.065 applies, and plaintiff's claims arising out of incidents that occurred before June 5, 2020, are time-barred.
Also, defendant has not been convicted of a crime, which is a prerequisite to obtaining any escrow proceeds. O.R.S. 147.275(3).
IV. Voluntary Dismissal-Claims 34, 35, and 36
In her response to the motion to dismiss, plaintiff concedes that claims 34, 35, and 36 “based on the June 14, 2020, incident are insufficient and warrant dismissal.” See Riddell Decl., Ex. 3 (Proposed Second Amended Complaint), ECF 17 at 59-61.
RECOMMENDATIONS
Defendant's Motion to Dismiss (ECF 11) should be GRANTED to the extent that any claims arising from incidents that allegedly occurred before June 5, 2023, are time barred and those claims should be dismissed. Based on plaintiff's concession, claims 34, 35, and 36 also should be dismissed.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, July 28, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.