Michael Sain Ryan White Lori J. Sain, Personally and as Next Friend for Crystal Sain v. City of Bend Buck Church Tom Pine Al Campbell
309 F.3d 1134
9th Cir.
2002
Check Treatment
Docket

*1 containing untrue prospectus, eluding omissions. or material

statements 77Z(a)(2). Again

U.S.C. “con- prospectus Imation’s

alleges that facts, material untrue statements

tained necessary to facts to state other

omitted misleading, and the statements

make material failed to disclose

concealed examples of are textbook These

facts.” satisfy that fail to

conclusory allegations of Rule requirements particularity

9(b). REVERSED in part,

AFFIRMED party Each shall remanded.

part, appeal. its own costs

bear White; SAIN; Ryan Lori J.

Michael

Sain, next friend for personally Plaintiffs-Appellants,

Crystal Sain, Church; BEND; Tom Buck

CITY OF

Pine; Campbell, Al Defendants-

Appellees.

No. 00-36033. Appeals,

United States Court

Ninth Circuit. 8, 2002.* July

Submitted

Filed Oct. * 34(a)(2). R.App. P. unanimously case suit- Fed. panel finds this This argument. See oral able for decision without *2 Miller, Bend,

Mikel R. OR, for the plain- tiffs-appellants. Franz,

Robert Jr., E. OR, Springfield, for defendants-appellees Bend, City of Church, Buck Tom Pine. Robert Wagner, S. Miller Wagner & LLP, Portland, OR, for defendant-appellee Campbell. A1 FERGUSON, Before: FLETCHER, W. KING,** Judges, Circuit District Judge.

Opinion by Judge WILLIAM A. FLETCHER; by Judge Concurrence KING. FLETCHER,

WILLIAM A. Circuit Judge.

Plaintiffs filed an action under U.S.C. 1983 in court dismissed ground plain- tiffs’ was barred statute of limitations under Or.Rev.Stat. § 30.275.We on two reverse independently grounds. First, sufficient we hold that plaintiffs’ complaint was timely filed be- ** George California, King, Honorable H. sitting by designation. United Judge States District for the Central District provided ORCP Except as otherwise Rules of Civil we look Federal act is to which an be time for the time within compute 3 and

Procedure done, in the civil and crimi- provided statutes, action computed cause of underlying procedure nal *3 Second, even if than state. day including and the first excluding compu- Oregon law for to look to any we were day upon last unless last falls time, plaintiffs’ find tation Saturday, in which holiday or on legal timely under complaint was day is also excluded. case the last limita- 12.110, look for the to which we added.) Au- out that Pointing (Emphasis Oregon. in 1983 suits period tion 2000, a holi- Sunday, awas gust ar- plaintiffs Oregon day under Proceedings and Prior I. Facts § 174.120 extended gued that Or.Rev.Stat. filed an plaintiffs August On Monday, August limitations period to Plaintiffs 42 U.S.C. 1983. action under 14, 2000. 14, 1998, the individ- August allege that defendants, officers police ual the motion granted The district court Bend, rights their civil under violated first noted that under The court dismiss. Amendments. and Fourteenth the Fourth Glenn, Spokane v. Federal Land Bank of dismiss under a Defendants filed motion P.2d 264 n. Or.App. 12(b)(6), Procedure Rule of Civil Federal include the year a not extra does complaint was contending of calculat- leap year purposes in a day Oregon Tort Claims under the time-barred court then ing a Act, 30.275. The codified at Or.Rev.Stat. does 174.120 found that Or.Rev.Stat. part: in relevant provided statute § 30.275 because the to Or.Rev.Stat. 12.120 and Except provided ORS under statute is considered latter 12.135, notwithstanding any other but substantive, procedural, to be a chapter or other provision of ORS (ap- § 174.120 statute. See Or.Rev.Stat. limitation on a providing procedure criminal only to “civil and plying action, an an action commencement of added)); Tyr- Tyree (emphasis statutes” any act or omission of a arising from 317, 320, ee, P.2d Or.App. officer, or body employee or public (1993) (“ORS procedural is not 30.275 body scope within the agent public of a statute.”). Thus, to the district according shall be com- 30.300 ORS court, limita- day applicable the last al- menced within two 13, 2000, Sunday, August period tions was leged injury. loss or complaint filed one plaintiffs their (revised 30.275(8) (2000) timely appealed. Plaintiffs too late. 2001) added). Defendants as- (emphasis under serted that 6(a) Apply to Suits 11. Rules 3 and consid- leap year and a year days is 365 Federal Law Brought under Because year day. ered a one leap year, defendants filed year plaintiffs 2000 was hold because We first file the law- plaintiffs had to argued that in federal because their suit 13, 2000, in Sunday, August order suit fed- of action is plaintiffs’ underlying 730-day deadline. to meet the eral, Rules of Civil Rule 3 of the Federal action “com- tells us when the Procedure cited, inter plaintiffs opposition, In their the statute of purposes of mences” for alia, pro- which limitations, tells us how and that vides: compute the time for of Rule filing menced a complaint with the Walker, court.” In the Court held that filing a complaint federal court does not Plumer, In Hanna v. commence a suit based on state law for L.Ed.2d 8 the Su- purposes of the statute of limitations. preme Court held that if a Federal Rule of footnote, in a the Court suggest- regulates Civil Procedure matter ed that filing might toll the procedural, eral court that is or argu- in a suit based on feder- ably procedural, that rule controls. The al law. See id. at 751 n. 100 S.Ct. 1978 requirement that the rule be at least argu- (“We do not here address the role of Rule ably procedural comes from the Rules En- 3 as a tolling provision for a *4 statute of abling provid- 28 U.S.C. which limitations, ed that whether set rules “shall not federal law or abridge, borrowed enlarge modify any or substantive from state if the cause of right.” Enabling law.”). Because the Rules Act action is based on federal This 1934, was enacted in four before the suggestion might Rule 3 operate dif- —that Court decided Company Erie Railroad v. ferently depending whether the under- 64, Tompkins, 817, U.S. 82 lying cause of is, action is state or federal — (1938), L.Ed. 1188 proviso restricting its course, inconsistent with the scheme of permissible scope the of the rules could the 1934 Rules Enabling Act and with not have been to designed pur- serve the apparent Hanna’s insistence that a federal poses thereby of Erie and to ensure the rule operate in the same fashion irrespec- Rather, primacy of state law. proviso the tive of the state or federal character of the designed was purposes serve the underlying substantive law. anti-delegation by limiting doctrine the West, In the responded scope of rules that adopted were with min- the suggestion in the Walker footnote. It imal congressional involvement. See Ste- held that Rule 3 does tell us when suit Burbank, phen B. Enabling Rules Act commences, based on federal law at least (1987). Pa.U. L.Rev. 909 when the statute of limitations borrowed accordance with this understanding, Han- West, from federal law. In underlying na held that designed rules are cause of action was based on the federal govern arguably procedural matters National Labor Relations federal district underly- whether the statute of limitations was borrowed from a state, ing substantive law is or federal different federal statute. See DelCostello subject juris- the source of matter Teamsters, 462 U.S. 103 S.Ct. question diction is federal or diversity. If 76 L.Ed.2d 476 The Court wrote simple view articulated Hanna had in West: cases, qualified by been later [Wje 6(a), underlying now hold when the straightforwardly apply Rules 3 and and that cause of action is based on federal law would be the end of the analysis. and the absence of an express federal But in Walker v. Armco Steel Corp., 446 necessary statute of limitations makes it U.S. 100 S.Ct. 64 L.Ed.2d 659 borrow a limitations an- from Conrail, and West v. statute, other the action is not barred if 107 S.Ct. 95 L.Ed.2d 32 compliance has been “commenced” in Supreme Court held that Rule 3 means with Rule 3 within the borrowed something depending different on whether Thus, the suit is based on state or federal law. U.S. S.Ct. 1538. provides: Rule 3 “A civil action is com- following: Walker and we know the rule is not the state concluded a suit based on not commence Rule 3 does statute of purposes tolling rule within “closely law for related” state (Walker). Rule 3 Wilson, and have held meaning of law on federal based commence suit does determining the rule provides Rule 3 limitations borrowed a statute of that has See §a 1983 action is commenced. (West). from federal (1st Antonino, 71 F.3d McIntosh v. however, not, an- West do Walker Indiana, 999 Cir.1995); Moore State of in this case: question precise swer (7th Cir.1993); v. Rich- Lewis F.2d 1125 commences us a suit Rule 3 tell when Does Dep’t, 947 F.2d 733 mond Police West) (like action is the cause of where Demma, Cir.1991); Martin v. (unlike West) the stat- federal, but where Cir.1987). join our sister now borrowed from of limitations is ute that Rule 3 circuits and hold As we know federal law? state statute rule for a borrowed tolling Wilson, limitations for the statute of is, That we §in 1983 actions. per- from state is borrowed § 1983 actions action is commenced hold that a tort law. See also Chardon injury sonal district court Soto, 462 Fumero *5 is when the statute (1983); Regents v. L.Ed.2d 74 Board 77 of filed. Tomanio, 100 64 446 S.Ct. how must decide L.Ed.2d 440 We hold, necessary aas be borrowed. further that state should

much of Wilson, “[o]nly length time, of According of corollary, computation that the closely related period, the limitations by tolling, governed Rule 3 is purposes of application are to tolling of questions 6(a). in relevant provides, That rule Rule at law.” 471 U.S. by state governed be part: 269, 105 1938. S.Ct. pre- of time computing any period “closely ques related phrase rules, ... or allowed these scribed a broad tolling” given is not to be tions of computed so day last [t]he for, wrote in as the Court reading, included, Saturday, it is a unless shall be necessary for us to borrow a “when is holiday[.... Sunday, ] or a limitations, we borrow no more of necessary.” 481 U.S. at when this action Rule 3 tells us Because tolling rules that we take 1538. The 6(a) commences, telling us applies, Rule Wilson, law, are with consistent pre- of time tomompute “any period how include a tolling rules. Such rules broad rules.” or allowed these scribed TwoRi litigant’s incapacity, see would-be Ore- day the last of Since (9th Cir.1999) Lewis, 174 987 vers v. F.3d Sunday, limitations fell on Nelson, gon statute of (incarceration); 117 Ormiston (2d Cir.1997) not day that is (insanity), 72 n. 3 F.3d Thus, proceedings, of see pendency other Rule 3. even counted for of Rivera, 272 F.3d 519 Cir. Johnson applica- § were the if 30.275 2001); Hegmann, 198 F.3d Harris held, statute, district court ble as the (5th Cir.1999), equitable tolling, see 6(a), matter, Rules 3 and would Houston, 237 F.3d Piotrowski v. Sunday that a together, taken dictate Cir.2001). § when that in a 1983 action be counted in the Sunday is the last that have circuit courts

The four filed. timely Plaintiffs’ action was therefore us have specific issue before addressed § § III. 12.110 12.110 to plaintiffs’ complaint. In Wil Applicable Garcia, Statute son v. Limitations 85 L.Ed.2d 254 Supreme held that the relevant state statute for solely Oregon Even if we looked personal injuries, rather than the state time, computation law for claims, statute for statutory should be holding reverse the court. used as the statute of limitations for correctly The district court found that un Wilson, actions. Following we Oregon year days, der held in Harvey, Davis v. leap year. Spo See Fed. Land Bank of (9th Cir.1986), Oregon’s kane, statute of lim n. Or.App. 785 P.2d (“Even actions, itations for personal injury if Or. one-year redemption peri Rev.Stat. rather than were applicable, mortgagor od loses. The 8, 1987, Tort Claims sale occurred December sheriffs redemption applies and the actual occurred on De to a action. Two Davis, cember leap year, was a the Oregon Supreme Court redemption days Sanok, occurred 866 decided in which it held: af year ter the sale. A days.” (empha is 865 For some time the question of the prop- added)). However, sis the district court er statute of limitations to erred in in applying Or.Rev.Stat. 30.275 eral subject section 1983 cases was stead 12.110 to 1983 ac dispute. considerable In 1985 the Unit- tion. Supreme ed States Court settled the question by holding that claim Defendants that the issue of character of section 1983 and the need prop is the for a uniform statute of limitations for *6 er statute of properly limitations is not variety the of claims under section 1983 before it us because was not raised in the required that the relevant state statute disagree. district court. We The plain personal injuries for be used as the stat- tiffs asserted in their opposition brief ute of limitations for all section 1983 the district court: “Notice provisions of reason, actions. ... For plaintiffs’ this Oregon the Tort Claim Act are not rele claim governed under section 1988 is Grimes, vant to this action. Sanok v. 12.110, (1988)” two-year the limit (emphasis Or. P.2d 228 ofORS added). 30.275(8). Grimes, the similar limit v. ORS Sanok 306 Or. of (1988), The specifically Wilson court Oregon Supreme 760 P.2d 228 the held that state specifically periods statutory held that the limitations limitations for period Oregon Tort apply Claims claims would not in section 1983 30.275, § apply Or.Rev.Stat. does not actions. held, § 1983 actions. Sanok court Sanok, 262-63, atOr. 760 P.2d 228

rather, that appropriate the statute of limi (citations omitted) added). (emphasis §in tations 1983 actions is Or.Rev.Stat. reiterated, later in Cooper City v. Ash of § 12.110. We hold that through the above land, 1989), Cir. Sanok, assertion and citation to plaintiffs “Oregon’s two-year statute of limitations sufficiently argument raised that Or. for personal injury applies actions to ac- § Rev.Stat. 30.275 does not apply to their § tions under 42 U.S.C. 1983. See Or.Rev. § 1983 action. 12.110(1).” § Stat. at Cooper, 871 F.2d 105. The district court therefore erred Under our precedent, as well as courts, fading § Oregon that of the state the Or.Rev.Stat. 12.110 to district court should have applied plaintiffs’ Or.Rev.Stat. 1983 action. Conrail, 481 with begin West timely under should is complaint

Plaintiffs resort 95 L.Ed.2d without 107 S.Ct. U.S. Or.Rev.Stat. Procedure 3 and of Civil Rules the court to bor- to Federal a case requiring 6(a). Although both for a federal limitations row the statute of 12.110(1) 30.275(8) and Or.Rev.Stat. claim, the here. as is case period, limitations two-year a provide for borrowing the Admittedly, involved West has held Supreme Court from another the statute the com applies Garcia, Wilson federal while of the statute limitations putation 85 L.Ed.2d 12.110(1). Stupek See the stat- that we borrow mandates Corp., 327 Or. Wyle Laboratories § 1983 claim limitations for the noted, ute of supra, As P.2d law. day falls in this case from state Howev- that if the last issue § 174.120 a holiday (including inconsequential for Saturday er, is this difference any is Sunday) excluded we borrow our because Thus, under Or.Rev.Stat. calculation. time claim, apply- we are for a state law federal period state, federal, and do not un- ing be extended to Sunday would ending on nature of the claim. dermine limita Plaintiffs’ following Monday. States, 263 v. United See Jutzi-Johnson § 12.110 under tions Cir.2001)(“When F.3d August Monday, until expire did not statute of limita- court state eral borrows their com filed day plaintiffs law; tions, applying the court is was there plaint, law.”). Therefore, in applying timely fore filed. view, holding equally my applica- West’s holding of We therefore REVERSE we the state statute ble when borrow fur- court and REMAND action. proceedings. ther reasons, I concur foregoing For KING, Judge, concurring: II, District join Parts in Part but I the result majority’s opinion. III of the majority’s I and join I Parts III Part II. result of and concur opinion *7 express separately I write

that, view, delve into my we need not or Walker be- implications of Hanna § 1983 involves a federal appeal this diversity

claim, claim based on not a state inquiry Consequently,

jurisdiction.1 Instead, the qualifies Hanna. majority's not that Walker join discus- also do not in the I Walker, conjunction with problem is that as I do not believe of Hanna and sion Walker, anomaly resulting Rule majority created qualifies as the Walicer Hanna upon scope Indeed, having depending a different be said that Hanna it cannot states. underlying claim is based contemplated in Walker. situation had fact, Supreme Insofar as the distinguish, or state law. Hanna chose Court anomaly overrule, as to has this Ragan & created v. Merchants Transfer ability change. Co., beyond Whether it is our Warehouse is, appli- may incongruént anomaly portend case that accord- L.Ed. 1520 Court, Civil Rules of Proce- "indistinguishable” cation of other Federal Supreme to the ing Walker, question we need confront dure is not Walker. See view, this case. my problem S.Ct. 1978. In