Smith v. Evraz Inc. NA

Motion for Summary Judgment . Oral Argument requested.

D. Or.January 26, 2017

Page 1 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT {01274145.docx} LINDSAY HART, LLP 1300 SW FIFTH AVENUE, SUITE 3400 PORTLAND, OREGON 97201-5640 PHONE: 503-226-7677 FAX: 503-226-7697 James P. McCurdy, OSB #043564 jmccurdy@lindsayhart.com Alice S. Newlin, OSB #084314 anewlin@lindsayhart.com LINDSAY HART, LLP 1300 SW Fifth Avenue, Suite 3400 Portland, Oregon 97201-5640 Phone: 503-226-7677 Fax: 503-226-7697 Attorneys for Defendant Evraz Inc., NA UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION CECIL F. SMITH, Plaintiff, v. EVRAZ INC., NA, a Delaware Corporation, Defendant. Case No 3:17-cv-00086-SI DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Oral Argument Requested COMPLIANCE WITH LR 7-1(a) Defense counsel conferred with Plaintiff’s counsel by telephone January 25, 2017 and the parties were unable to resolve the issues in this motion. (McCurdy Dec., ¶ 2). The requirements of LR 7-1(a) have been met. MOTION Defendant moves for summary judgment dismissing plaintiff’s Complaint with prejudice on the ground that the complaint was filed after expiration of the applicable two-year statute of limitations, ORS 12.110(1). Defendant’s motion is based on the Joint Statement of Agreed Facts submitted by the parties in the predecessor case, Smith v. ICTSI Oregon, Inc., Case no. 3:15-cv- 00035-BR, (McCurdy Decl. Ex. B)., the findings of the Honorable Judge Anna Brown as reflected Case 3:17-cv-00086-SI Document 5 Filed 01/26/17 Page 1 of 13 Page 2 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT {01274145.docx} LINDSAY HART, LLP 1300 SW FIFTH AVENUE, SUITE 3400 PORTLAND, OREGON 97201-5640 PHONE: 503-226-7677 FAX: 503-226-7697 in her Opinion and Order (McCurdy Decl. Ex. A), excerpts of Plaintiff’s deposition testimony and deposition exhibits (McCurdy Decl. Ex. D), and the following legal memorandum. LEGAL MEMORANDUM A. INTRODUCTION This case is an attempt to side-step the statute of limitations and evade the court’s rulings in a previously filed lawsuit. Plaintiff alleges that he was injured on or about January 7, 2013 while working at Terminal 6 of the Port of Portland. (Docket No 1-1, ¶ 4). On January 13, 2015, Plaintiff filed suit against ICTSI in the U.S. District Court of Oregon (Case No. 3:15-cv-00035-BR). (Docket No. 1-1, ¶ 4). In that lawsuit, Plaintiff named ICTSI as the defendant responsible for the maintenance of the Terminal 6 asphalt that he alleges caused his injury ("ICTSI Lawsuit"). (Docket No. 1-1, ¶ 5). That case was dismissed with prejudice by Judge Anna J. Brown on Defendant’s Motion for Summary Judgment because it was not filed within two years from the date of injury. (Docket No. 37, ¶ 5; McCurdy Decl. Ex. A. Plaintiff appealed that decision to the Ninth Circuit Court of Appeals. (Docket No. 1-1, ¶ 5). On December 20, 2016, Plaintiff filed this action in the Circuit Court for Multnomah County, Oregon. 1 (Docket No. 1-1, ¶ 4). In the Complaint, Plaintiff makes the same argument he made in the ICTSI case: that despite the exercise of reasonable diligence and care, Plaintiff did not discover the substantial possibility of a claim against Defendant Evraz until less than two years from the filing of this Complaint. (Docket No. 1-1, ¶ 6). However, at the time of his injury, Plaintiff had worked in the area for several years, performed regular work for Evraz, was in regular contact with Evraz, knew Evraz was aware of the condition of the property, and was aware of Evraz’s lease. Accordingly, he knew or should have known of his claim against Defendant in 2013, and his claim is barred by the applicable 2-year statute of limitations. (McCurdy Dec., Ex. A, p.2 and Ex. D). /// 1 On January 19, 2017, Defendant removed the case to this court based on the court’s diversity jurisdiction. (Docket No. 1). Case 3:17-cv-00086-SI Document 5 Filed 01/26/17 Page 2 of 13 Page 3 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT {01274145.docx} LINDSAY HART, LLP 1300 SW FIFTH AVENUE, SUITE 3400 PORTLAND, OREGON 97201-5640 PHONE: 503-226-7677 FAX: 503-226-7697 B. QUESTION PRESENTED Whether the discovery rule applies to delay accrual of plaintiff’s action such that filing of the complaint on December 20, 2016 was timely for limitations purposes. C. FACTS As Plaintiff admits in his Complaint, the current lawsuit arises from the same incident alleged in the ICTSI lawsuit; accordingly, Plaintiff should be estopped from asserting contrary facts in this action. A party may be estopped from taking an inconsistent factual position from a position taken earlier in litigation that was accepted by the court and conveys an unfair advantage to that party. New Hampshire v. Maine, 532 U.S. 742, 750, 121 S. Ct. 1808, 149 L.Ed.2d 968 (2001); Johnson v. Lindon City Corp., 405 F.3d 1065, 1069 (10th Cir. 2005). 1. Plaintiff has been a longshore worker and marine clerk since 1988. Plaintiff was injured when he stepped into a pothole while working for Jones Stevedoring at Port of Portland Terminal 6 on January 7, 2013. (McCurdy Dec., Ex. B, Agreed Facts 7, 9 – 11.) 2. Since 2010, defendant ICTSI Oregon, Inc. (“ICTSI”) has leased Terminal 6 from the Port of Portland. (McCurdy Dec., Ex. B, Agreed Fact 4.) 3. Plaintiff has known that ICTSI operates Terminal 6 since 2012 at the latest. (McCurdy Dec., Ex. B, Agreed Fact 6.) 4. Since about 2009, plaintiff has been a member of International Longshore and Warehouse Union Local 40, and since at least 2011, plaintiff has been a member of the Local 40 executive board. (McCurdy Dec., Ex. B, Agreed Facts 7-8). D. ADDITIONAL FACTS Defendant contends that the following additional facts cannot be controverted, and that the court, in granting ICTSI’s Motion for Summary Judgment in the underlying case, relied upon them: 1. The injury to plaintiff and its cause were immediately known to plaintiff. (McCurdy Dec., Ex. C, ¶¶ 6 – 7 and Ex. B.) Case 3:17-cv-00086-SI Document 5 Filed 01/26/17 Page 3 of 13 Page 4 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT {01274145.docx} LINDSAY HART, LLP 1300 SW FIFTH AVENUE, SUITE 3400 PORTLAND, OREGON 97201-5640 PHONE: 503-226-7677 FAX: 503-226-7697 2. Plaintiff’s local union, ILWU Local 40, has since 2012 at the latest been involved in litigation with ICTSI over aspects of its operation of Terminal 6. (McCurdy Dec., Ex. C, ¶¶ 6 – 7 and Ex. B.) 3. Plaintiff knew that ICTSI leased the slab yard at Terminal 6 to Defendant at the time of his injury. (McCurdy Dec., Ex. A, p.2); (McCurdy Dec., Ex. D). 4. Plaintiff knew at the time of his accident that the condition of the slab, with potholes all over it, had existed “for months,” and a member of his union had informed Defendant Evraz of the danger. (McCurdy Dec., Ex. D, 77:16-23). 5. At the time of his accident, Plaintiff had worked with a stevedoring company is a chief supervisor for several years, managing loading and delivery of steel from ships at Terminal 6 to Defendant’s mill facilities. (McCurdy Dec., Ex. D, 40:12-19; 44:23-45:2). 6. On the date of his accident, Plaintiff went to the area where he was injured because he communicated directly with Defendant and had paperwork from Defendant directing him to the particular ships he was to unload and the particular cargo to deliver to Defendant. (McCurdy Dec., Ex. D, 51:21-24). E. ARGUMENT 1. Applicable Law “Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is not genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Fed. R. Civ. P. 56(c).” Cook v. Sibjet, 2000 U.S. Dist. LEXIS 20908, *7 (D. Or. 2000). Summary judgment is appropriate here because the uncontroverted evidence shows that plaintiff’s cause of action accrued on the day he was injured, January 7, 2013, and his complaint was filed on December 20, 2016 nearly four years later, in violation of the two-year statute of limitations in ORS Case 3:17-cv-00086-SI Document 5 Filed 01/26/17 Page 4 of 13 Page 5 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT {01274145.docx} LINDSAY HART, LLP 1300 SW FIFTH AVENUE, SUITE 3400 PORTLAND, OREGON 97201-5640 PHONE: 503-226-7677 FAX: 503-226-7697 12.110(1). There are no genuine issues of material fact that might alter this relatively straightforward analysis. This is a diversity action seeking damages for negligence. No federal law claim for relief is alleged. Therefore, the court applies federal procedural law and state substantive law. See, Stewart v. Rodck Tenn CP, LLC, 2015 U.S. Dist. LEXIS 54196 (D. Or. 2015), citing, inter alia, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 68 S. Ct. 817, 82 L. Ed. 1188 (1938). The applicable statute of limitations is substantive, and governed by state law. Stewart , 2015 U.S. Dist. LEXIS at *14 – 17; Gilley v. Oregon, 2007 U.S. Dist. LEXIS 18523, *7 (D. Or. 2007); Pulido v. UPS Gen. Servs. Co., 31 F.Supp.2d 809, 816 (D. Or. 1998). Under Oregon law, actions must be commenced within the period prescribed by statute after the cause of action accrues. ORS 12.010. The applicable limitations period for a personal injury of the type alleged by plaintiff is ORS 12.110(1). It provides that “[a]n action for . . . injury to the person or rights of another, not arising on contract and not especially enumerated in ORS chapter 12 shall be commenced within two years.” Plaintiff was required by Oregon law to file his complaint within two years following accrual of his cause of action. That is, no later than January 7, 2015, two years from the date of his injury. An action accrues under Oregon law when the plaintiff obtains knowledge, or reasonably should have obtained knowledge, of the tort committed upon his person by defendant. That is, when he knows of the harm, causation, and tortious conduct. Doe v. American Red Cross, 322 Or. 502, 512-514 (1996); Cook v. Sibjet, 2000 U.S. Dist. LEXIS 20908, *3-4 (D. Or. 2000), citing Berry v. Branner, 245 Or. 307 (1966) and Gaston v. Parsons, 318 Or. 247, 256 (1994). It is an objective test. Cook, at *4, quoting Gaston, 318 Or. at 256. 2. Discovery Rule Plaintiff was injured on January 7, 2013, when he stepped in a pothole at Port of Portland Terminal 6. The alleged harm and its cause were immediately clear. Plaintiff stepped in a hole and Case 3:17-cv-00086-SI Document 5 Filed 01/26/17 Page 5 of 13 Page 6 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT {01274145.docx} LINDSAY HART, LLP 1300 SW FIFTH AVENUE, SUITE 3400 PORTLAND, OREGON 97201-5640 PHONE: 503-226-7677 FAX: 503-226-7697 tore his Achilles tendon. He knew immediately that he was seriously injured. (McCurdy Dec., Ex. C, ¶¶ 6 – 7 and Ex. B.) He did not return to work for over six months. (McCurdy Dec., Ex. B, Agreed Fact 12.) In his Complaint, plaintiff pleads facts calculated to delay the accrual of his action by delaying the time that he was aware of Defendant’s tortious conduct. Plaintiff alleges: 4. On or about January 7, 2013 the plaintiff was working as a marine clerk checking cargo, and was walking on the Terminal 6 asphalt pavement, when he stepped in a large pothole about five inches deep, and tore his left Achilles tendon. 5. Plaintiff filed suit against ICTSI in an action in the U.S. District Court of Oregon (Case No. 3:15CV-00035-BR) naming ICTSI as the defendant responsible for the maintenance of the Terminal 6 asphalt (the "ICTSI Lawsuit"). That case was dismissed by Judge Anna J. Brown on Motion for Summary Judgment because it was not filed within two years from the date of injury. That decision has been appealed to the Ninth Circuit Court of Appeals. 6. Despite the exercise of reasonable diligence and care, Plaintiff did not discover the substantial possibility of a claim against Defendant until less than two years from the filing of this Complaint. At the time of the accident, Plaintiff did not know, and could not have known, of a substantial possibility of a claim against Defendant. In August of 2013, Plaintiff requested all documents regarding the lease and maintenance of the dock on which Plaintiff was injured, as part of Plaintiff's investigation into who had the responsibility for filing the potholes. Upon information and belief, Plaintiff did not receive a response until December 2013, when he received the lease between the Port and ICTSI. It states that ICTSI is responsible for paving the asphalt. In May 2015, however, ICTSI filed an Answer in the ICTSI Lawsuit, stating that "third parties" might bear some responsibility for maintenance of the dock. In oral argument on ICTSI's Motion for Summary Judgment in the ICTSI Lawsuit, which occurred in December 2015, ICTSI represented to the Court that Defendant is the responsible party for filing potholes on the dock where Plaintiff was injured. (Docket No.1, Ex. A, ¶¶ 4-6). Case 3:17-cv-00086-SI Document 5 Filed 01/26/17 Page 6 of 13 Page 7 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT {01274145.docx} LINDSAY HART, LLP 1300 SW FIFTH AVENUE, SUITE 3400 PORTLAND, OREGON 97201-5640 PHONE: 503-226-7677 FAX: 503-226-7697 Paragraph 6 seems to contain two theories for delaying accrual of the cause of action: (1) that Plaintiff did not immediately know that he could make a claim against a third party not his employer—that is, that a third-party might be legally liable for his injury—and (2) that plaintiff did not immediately know the correct third party’s identity. The difference between the two theories is subtle and for purposes of our analysis unimportant. What is important is that Plaintiff knew, at the time of his injury, that he was injured on a pothole in slab yard leased by Defendant Evraz. Specifically, Plaintiff testified in his deposition that he “stepped in a pothole” in “the pavement” of a slab yard where he was working. (McCurdy Dec., Ex. D, 72:4-11). He described the area where he was injured as approximately 17 acres of slab yard leased by Evraz: Q. (BY MR. ZILBERT) you said earlier that the area was 17 acres. Are we talking just about the slab yard? A. Just the slab yard is what EVRAZ has leased. This is supposed to be, according to the calculations, 17 acres. Q. Okay. And when you say “This is supposed to be,” you’re referring to the slab yard indicated on Exhibit 3? A. Yes. Q. Do you know when EVRAZ leased that area first? A. No. Q. When that lease began? A. No, I do not. Q. Is it your understanding today that that is an area today that was leased by Evraz on January 7 th , 2013? A. Yes. Q. And that’s because you were working for EVRAZ at the time? A. Yes. Case 3:17-cv-00086-SI Document 5 Filed 01/26/17 Page 7 of 13 Page 8 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT {01274145.docx} LINDSAY HART, LLP 1300 SW FIFTH AVENUE, SUITE 3400 PORTLAND, OREGON 97201-5640 PHONE: 503-226-7677 FAX: 503-226-7697 Q. And these slabs were EVRAZ’s slabs? A. Yes. (McCurdy Dec., Ex. D, 75:4-25). Plaintiff was able to mark the boundaries of the slab yard on a map demonstrating the Terminal 6 leases. (McCurdy Dec., Ex. D, 60:4-63:20; Deposition Exhibit 3). Plaintiff also knew at the time of his accident that the condition of the slab, with potholes all over it, had existed “for months,” and that Evraz “had been told” of the danger by union members. (McCurdy Dec., Ex. D, 77:16-23). Plaintiff was very familiar with Defendant Evraz and its work at Terminal 6 at the time of his injury. As he testified in his deposition in 2015, he had been doing steel mill transportation work involving Evraz steel slabs about five years. (McCurdy Dec., Ex. D, 21:19-20). He also testified that in January 2013, at the time of his injury, he was the “chief supervisor” with Jones Stevedoring, and the “chief supervisor basically runs everything. I take care of all the paperwork for the ships. I’m in communication with EVRAZ.” (McCurdy Dec., Ex. D, 38:20-22; 39:23-25). Starting around 2010, according to his testimony and payroll records, Plaintiff started doing mostly slab work for Jones, and was “primarily responsible for getting the slabs from the dock to EVRAZ.” (McCurdy Dec., Ex. D, 117:17-118:8; 125:14-126:11; Deposition Exhibit 6). Part of his duties also included delivering slabs to EVRAZ at Terminal 6, by making sure the “right commodity is loading on the truck,” creating daily forms to record which lots and slabs EVRAZ wanted delivered, and maintaining those forms as part of his job duties. (McCurdy Dec., Ex. D, 40:12-19; 44:23-45:2). On the date of his injury, Plaintiff arrived at work and went to the tier for the ship he was going to unload that day based on the document he had from EVRAZ indicating which ships to unload and what count of slabs to send to their mill. (McCurdy Dec., Ex. D, 51:21-24). Case 3:17-cv-00086-SI Document 5 Filed 01/26/17 Page 8 of 13 Page 9 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT {01274145.docx} LINDSAY HART, LLP 1300 SW FIFTH AVENUE, SUITE 3400 PORTLAND, OREGON 97201-5640 PHONE: 503-226-7677 FAX: 503-226-7697 In a negligence action, the statute of limitations begins to run when plaintiff “discovers, or in the exercise of reasonable diligence should have discovered, the identity of the tortfeasor.” Gehrke v. CrafCo, Inc., 143 Or. App. 517, 522 (1996) rev. den. 324 Or 560 (1997). Here, plaintiff had known since before the date of his accident that Defendant Evraz leased Terminal 6. His discovery rule argument is that he did not know that ICTSI, or the Port, might have contracted with third parties, such as Defendant, who might be responsible for maintenance, and therefore responsible for the pothole. If plaintiff’s claims were unusual or unique, he might have a point. For example, in Doe v. American Red Cross, 322 Or. 502, 512-514 (1996), plaintiffs were aware that a transfusion received in October 1987 exposed husband to HIV. He later died of AIDS. In 1990, his wife filed suit. The trial court held that ORS 12.110(1) applied and granted defendant’s motion for summary judgment on the statute of limitations defense. On appeal, the Court noted that, in the ordinary case, the third element, tortious conduct, appears “as a matter of course. This, however, is not an ordinary case, because of the nascent state of the law and science with respect to HIV and AIDS at the pertinent time.” 322 Or. at 515. It was not obvious to anyone that, in providing tainted blood, the defendants had been negligent. Plaintiff’s current claim is quite the opposite; it is a plain vanilla negligence claim: while on premises that he knew to be leased and operated by Evraz, he stepped in a pothole, tore his Achilles tendon, and was immediately incapacitated. This case is therefore not like Doe. It is like Gehrke. There, plaintiff sued for injuries suffered when she tripped and fell in a “Benjamin Franklin” craft store. Plaintiff’s attorney’s research indicated that defendant CrafCo owned the store, and plaintiff sued CrafCo just before expiration of the limitations period. In discovery, plaintiff learned that another party actually owned the store. Plaintiff amended her complaint to add the other party. The new defendant moved for summary judgment as the amended complaint was filed after expiration of the statute of limitations. The motion was granted. On appeal, the Court of Appeal held that Case 3:17-cv-00086-SI Document 5 Filed 01/26/17 Page 9 of 13 Page 10 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT {01274145.docx} LINDSAY HART, LLP 1300 SW FIFTH AVENUE, SUITE 3400 PORTLAND, OREGON 97201-5640 PHONE: 503-226-7677 FAX: 503-226-7697 “plaintiff knew or should have known that she had been wronged by the possessor of the store at the time of the fall, even though she did not know whom the possessor was.” 143 Or. App. at 522-23 (emphasis added). The allegations of paragraph 6 of plaintiff’s Amended Complaint suggest that until he learned that a third-party might be liable, his claim did not accrue. But that is akin to asking the court to apply a subjective standard—what did this plaintiff know. The correct standard is an objective one—what a plaintiff reasonably ought to know. As the court in Cook noted, “[a]ctual knowledge that each element is present is not required. . . . The statute of limitations begins to run when plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists.” Cook, 2000 U.S. Dist. LEXIS 20908 at *14, quoting Gaston, 318 Or at 255-56; see also, Widing v. Schwabe, Williamson & Wyatt, 154 Or. App. 276, 283 (1998) (plaintiffs had sufficient knowledge that they had some harm and a claim to start the running of the statute); Greene v. Legacy Emanuel Hosp. & Health Care Ctr., 335 Or. 115, 124 (2002) (quoting Gaston: “Although ‘tortious conduct’ is an element of injury under the discovery rule, a plaintiff does not need to identify a particular theory of recovery before the statute of limitations begins to run. All that is required is that the plaintiff discover that some invasion of the legally protected interest at stake has occurred.”) In Cook, plaintiff alleged she was injured by an exploding cigarette lighter. 2000 U.S. Dist. LEXIS 20908 at *2. Her son had obtained the lighter from a convenience store. After the explosion, only remnants remained. Defendant moved to dismiss the complaint on the grounds that service was not completed until more than 60 days after plaintiff’s complaint was filed, and more than two years after her claims accrued. Id., at *3. The court initially granted the motion to dismiss, but on reconsideration vacated the dismissal order. Id. at *5. In plaintiff’s subsequent deposition, defendant learned that plaintiff’s son “always” smoked a brand of cigarettes identified with Case 3:17-cv-00086-SI Document 5 Filed 01/26/17 Page 10 of 13 Page 11 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT {01274145.docx} LINDSAY HART, LLP 1300 SW FIFTH AVENUE, SUITE 3400 PORTLAND, OREGON 97201-5640 PHONE: 503-226-7677 FAX: 503-226-7697 defendant, and was aware of facts that indicated that the lighter was associated with that cigarette brand. Id. at *6. Defendant moved for summary judgment on the basis of the newly discovered information. The court granted defendant’s motion, finding that plaintiff had a reasonable opportunity to become aware of her claim soon after her injury. Not that she was certain, but had a reasonable opportunity to become aware of the necessary elements. The court said: “t]here is no dispute that plaintiff’s deposition testimony establishes that she obtained the facts necessary for identifying [defendants] within days of the accident, and was aware – or reasonably should have been aware – of the substantial possibility that the three elements for her suit, harm, causation, and tortious conduct, all existed at least as early as mid-July, 1998.” Citing Gehrke, the Court said that the tortfeasor’s identity was “inherently discoverable” as soon as plaintiff was injured: In Gehrke, the plaintiff argued that she exercised reasonable diligence in attempting to discover the correct identity of the party responsible for her injuries. The Oregon Court of Appeals rejected the argument, reasoning that “in this case, the identity of the tortfeasor was inherently discoverable when plaintiff was injured. At that time, she knew that the store, regardless of its legal identity, had caused her alleged injury.” The date that the plaintiff claimed to have actually discovered the source of her injury was inapplicable because the “plaintiff knew or should have known that she had been wronged by the possessor of the store at the time of the fall, even though she did not know whom the possessor was. The same is true in this case. Plaintiff knew the lighter had come from her son’s cigarettes, and that her son smoked the Basic brand. She knew as she arrived at the hospital that the lighter had injured her. She could read [identifying marks] on the shards of the lighter she collected soon after the explosion. Clearly, the identities of the distributor and manufacturer were “inherently discoverable” at the time of plaintiff’s accident and defendants are entitled to summary judgment. 2000 U.S. Dist. LEXIS 20908 at *15-16 (internal citations omitted). The same is true in this case. Plaintiff immediately knew he was injured by a pothole. The fact that he had a claim for relief against the terminal operator was inherent in the known facts. This Case 3:17-cv-00086-SI Document 5 Filed 01/26/17 Page 11 of 13 Page 12 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT {01274145.docx} LINDSAY HART, LLP 1300 SW FIFTH AVENUE, SUITE 3400 PORTLAND, OREGON 97201-5640 PHONE: 503-226-7677 FAX: 503-226-7697 is not a case where new information came to light after the limitations period ran. Plaintiff knew that Defendant Evraz leased Terminal 6 when he suffered his injury, because he worked for Defendant Evraz. He knew that Defendant Evraz might be responsible for the condition of the pothole and slab because a member of his union had informed Defendant Evraz of the danger. There was nothing, in other words, to be discovered, and his claim accrued the very day he was injured. Filing his complaint even one day after the two-year limitation period was too late, nearly two years after the expiration is similarly too late.. The discovery rule does not delay the accrual of plaintiff’s claim or cause of action in this case. F. CONCLUSION No allegations and no agreed facts indicate any basis for tolling the applicable statute of limitations. Plaintiff has not alleged that at any material time he was a minor, incompetent or incapacitated, and has not alleged that defendant was at any time absent from the state, concealed itself or evaded service, or otherwise sought to frustrate plaintiff’s timely filing of this action. The only questions are whether the discovery rule delayed accrual of plaintiff’s cause of action, and whether after the claim accrued the complaint was timely filed within the applicable limitations period. The answer to both questions is no. Defendant is entitled to judgment as a matter of law. Defendant requests summary judgment dismissing plaintiff’s complaint with prejudice. Dated this 26 th day of January 2017. LINDSAY HART, LLP By: /s/ James McCurdy James McCurdy, OSB No. 043564 jmccurdy@lindsayhart.com Alice S. Newlin, OSB No. 084314 anewlin@lindsayhart.com Case 3:17-cv-00086-SI Document 5 Filed 01/26/17 Page 12 of 13 Page 1 – CERTIFICATE OF SERVICE {01056737; 1} LINDSAY HART, LLP 1300 SW FIFTH AVENUE, SUITE 3400 PORTLAND, OREGON 97201-5640 PHONE: 503-226-7677 FAX: 503-226-7697 CERTIFICATE OF SERVICE I hereby certify that on January 26, 2017, I served a copy of DEFENDANT’S MOTION FOR SUMMARY JUDGMENT on the following person(s) in the manner indicated below at the following address(es): Richard Mann Brownstein Rask, LLP 1200 SW Main Street Portland, OR 97205-2040 rmann@brownsteinrask.com Attorney for Plaintiff by Electronic Mail by Facsimile Transmission by First Class Mail by Hand Delivery by Overnight Delivery by CM/ECF system transmission By: /s/ James McCurdy James McCurdy, OSB No. 043564 jmccurdy@lindsayhart.com Alice S. Newlin, OSB No. 084314 anewlin@lindsayhart.com Attorneys for Defendant Trial Attorney: James McCurdy Case 3:17-cv-00086-SI Document 5 Filed 01/26/17 Page 13 of 13