The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION
21ST CENTURY CENTENNIAL INSURANCE Case No. 6:24-cv-00089-MK (Lead Case)
COMPANY, et al.,
Plaintiffs,
v.
BONNEVILLE POWER ADMINISTRATION,
et al.,
Defendants,
ROBERT ADAMS, et al., Case No. 6:24-cv-00092-MK (Trailing Case)
Plaintiffs,
v.
BONNEVILLE POWER ADMINISTRATION,
et al.
Defendants,
KEVIN ALLARD, et al. Case No. 6:24-cv-00203-MK (Trailing Case)
Plaintiffs,
FINDINGS AND RECOMMENDATION
v.
BONNEVILLE POWER ADMINISTRATION,
et al.
Defendants.
KASUBHAI, United States Magistrate Judge:
Before the Court is Defendant Eugene Water & Electric Board’s (“EWEB”) Partial
Motion to Dismiss First Amended Complaint (“Def. EWEB’s Mot.”). ECF No. 75. For the
reasons explained below, Defendant EWEB’s Motion should be GRANTED.
BACKGROUND
This lawsuit arises from the Holiday Farm Fire, which struck the McKenzie River Valley
during Labor Day weekend in 2020. Plaintiffs initially sued EWEB and Lane Electric
Cooperative (“LEC”) in Lane County Circuit Court in 2021 and 2022. After nearly three years of
litigation in state court, Plaintiffs wanted to add a third defendant, federal agency Bonneville
Power Administration (“BPA”). However, Plaintiffs could not add BPA in state court and did not
want to proceed with parallel state and federal cases against different defendants in two different
venues. Instead, Plaintiffs wanted to dismiss the state claims and refile them in federal court so
all defendants could be added in one proceeding. However, Plaintiffs faced a statute of
limitations issue. Any claims refiled in federal court would not relate back to the original state
court filing. Before dismissing the state law claims, Plaintiffs asked EWEB and LEC to agree not
to raise a statute of limitations defense based on the time between the filing of the state and
federal complaints. EWEB and LEC ultimately entered into a stipulated agreement which,
among other things, stated that the relation-back agreement would apply only to the prior claims
filed in state court. EWEB and LEC reserved the right to assert a statute of limitations defense
against any new claims.
On January 16, 2024, Plaintiffs filed their Complaint in federal court. ECF No. 1. On
April 30, 2024, the Court granted Defendant EWEB’s Unopposed Motion to Consolidate Cases.
ECF No 62. Case No. 6:24-cv-00089-MK 21st Century Centennial Insurance Co. et al v.
Bonneville Power Administration et al was designated the lead case and was consolidated
with trailing Case No. 6:24-cv-00092-MK Adams et al v. Bonneville Power Administration et al
(“Adams”), and Case No. 6:24-cv-203-MK Allard et al v. Bonneville Power Administration et
al for the purposes of pretrial motions and discovery only. Id.
On June 20, 2024, the Adams Plaintiffs filed a First Amended Complaint (“FAC”) which
reasserted (from the original federal Complaint) a fourth cause of action against Defendant
EWEB for negligence per se. First Amen. Compl. ¶¶ 1690-98, Adams ECF No. 41. The prior
state court case, however, did not include a negligence per se claim against Defendant EWEB.
On July 17, 2024, Defendant EWEB moved to dismiss, asserting that the Adams Plaintiffs’
fourth cause of action was not subject to the parties’ relation back agreement and was time
barred. Def. EWEB’s Mot. at 2.
Defendant EWEB’s conferral certification under Local Rule 7-1 stated that Plaintiffs
opposed the Motion. Id. at 1. However, Plaintiffs failed to file a Response in opposition. On
August 12, 2024 Defendant EWEB’s counsel, Ms. Abercrombie, emailed the Court to notify it
that “counsel for plaintiffs (Mr. Klingbeil, copied here) let me know that they no longer oppose
the motion and will be filing an amended complaint later this week dropping [the negligence per
se] claim. In the meantime, Mr. Klingbeil and I wanted to alert court staff that this motion has
been resolved.” On August 14, 2024, the Court issued an Order, stating that “[p]ursuant to the
parties' e-mail communication with the Court that Plaintiffs plan on filing a motion to amend the
Complaint, the Court Orders Plaintiffs to file an Amended Complaint within 14 days. Failure to
file an Amended Complaint consistent with the parties’ stipulations regarding re-filing in federal
court will result in the Court granting Defendant EWEB’s Motion . . . .” ECF No. 95. Plaintiffs
failed to file a second amended complaint.
/ / /
LEGAL STANDARD
Under Fed. R. Civ. P. 12(b)(6), a motion to dismiss for failure to state a claim may be
granted only when there is no cognizable legal theory to support the claim or when the complaint
lacks sufficient factual allegations to state a facially plausible claim for relief. Los Angeles
Lakers, Inc. v. Federal Insurance Company, 869 F.3d 795, 800 (9th Cir. 2017). “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.’” Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206
(9th Cir. 1995) (quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980)
(affirming 12(b)(6) dismissal where the plaintiff’s allegations showed that she had notice of the
facts giving rise to the cause of action more than two years before filing the complaint)).
DISCUSSION
Defendant EWEB is a public utility and any tort claims asserted against it are subject to
the provisions of the Oregon Tort Claims Act (“OTCA”), including its statute of limitations. Or.
Rev. Stats § (“ORS”) 30.260(4); ORS 30.265(1). The applicable statute of limitations governing
state law tort claims against Defendant EWEB is two years from the date of injury or loss. ORS
30.275(9) (“[A]n action arising from any act or omission of a public body or an officer,
employee or agent of a public body within the scope or ORS 30.260 to 30.300 shall be
commenced within two years after the alleged loss or injury.”). Plaintiffs seek recovery of
damages caused by the Holiday Farm Fire that began on September 7, 2020. FAC ¶ 1. Plaintiffs
filed this action in federal court on July 17, 2024. Plaintiffs’ negligence per se against Defendant
EWEB was not subject to the stipulated agreement regarding relation back to the dismissed state
court case. Plaintiffs’ claim for negligence per se against Defendant EWEB is barred by the two-
year statute of limitations and should be dismissed.
CONCLUSION
For the reasons above, Defendant EWEB’s Motion to Dismiss (ECF No. 75) the Adams
Plaintiffs’ Fourth Cause of Action, negligence per se against Defendant EWEB, should be
GRANTED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit
Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1)
should not be filed until entry of the district court’s judgment or appealable order. The Findings
and Recommendation will be referred to a district judge. Objections to this Findings and
Recommendation, if any, are due fourteen (14) days from today’s date. See Fed. R. Civ. P. 72.
Failure to file objections within the specified time may waive the right to appeal the district
court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
DATED this 17th day of September 2024.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI (He / Him)
United States Magistrate Judge