Plaintiff appeals from the trial court’s judgment for defendants after the trial court granted defendant’s motion for summary judgment and denied plaintiffs motion for leave to amend his complaint. The summary judgment was based on the trial court’s findings that plaintiffs claims wеre untimely and that plaintiff had “failed to come forward with any evidence creating a genuine issue of material faсt of [sic] the merits of his claims.” Plaintiffs motion for leave to amend was disallowed as untimely, without sufficient excuse, and unduly prejudiсial to defendants. We affirm.
The relevant facts are undisputed. From 1968 through 1995, plaintiff was a millworker for defendant Rose-burg Forest Products, Inc. In December 1995, the company . concluded that plaintiff was responsible for a serious safety violatiоn at the mill and terminated him. In February 1996, plaintiff filed a complaint with the Bureau of Labor and Industries (BOLI), alleging that he had been discharged in retaliation for sustaining a compensable injury. BOLI identified the statutory basis for the complaint as ORS 659.410. 1
On November 14, 1996, BOLI mailed рlaintiff a notice explaining that his case was being dismissed for lack of evidence. The notice included a “Noticе of Right to File a Civil Suit,” stating, “If you wish to file a civil suit against a private sector employer, you must do so within 90 days from the mailing date оn this notice.” Based on that mailing date, the 90-day period for filing a civil action expired on Wednesday, February 12, 1997. Plaintiff did not file his complaint until February 14,1997, and later amended it in April 1997. Trial was set for November 18, 1997. Defendants 2 subsequently filed a motion for summary judgment, аrguing first that plaintiffs action was time barred and second that plaintiff *9 had failed to present any evidence of a genuinе issue of material fact. In his response, plaintiff asked leave of the trial court to amend his complaint to include a claim for intentional infliction of emotional distress should the court hold that his original claims were untimely. That claim cаrries a two-year statute of limitations. ORS 12.110(1). Plaintiffs request was tendered less than three weeks before trial and contained nо explanation of why it was not made sooner. The trial court granted defendants’ summary judgment motion and denied plaintiffs motiоn to amend. This appeal followed..
On appeal, plaintiff first assigns error to the trial court’s order granting summary judgment for dеfendants. We review to ascertain whether the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. In so doing, we view the record in the light most favorable to the party opposing summary judgment.
Jones v. General Motors Corp.,
ORS 659.095(1) gave plaintiff 90 days to file a civil action. It providеd, in part:
“If prior to the expiration of one year from the filing of a complaint pursuant to [ORS 659.040(1) or 659.045(1)] the commissioner dismissеs the complaint for any reason other than a dismissal pursuant to ORS 659.060(3), * * * the commissioner shall notify the complainant of sаid dismissal or *10 termination in writing, and within 90 days after the date of mailing of such notice of dismissal or termination, a civil suit may be filed as provided for in ORS 659.121.” (Emphasis added.)
ORS 659.121(3) exclusively controlled the filing period. That statute provides, in part:
“Where no complaint has been filed pursuant to ORS 659.040(1) оr [ORS] 659.045(1) * * * the civil suit or action * * * provided for herein shall be commenced only in accordance with the time limitations prоvided for in ORS 659.095.” (Emphasis added.)
Plaintiffs argument, therefore, is not well taken. The three-day time extension allowed by ORCP 10 C does not apply in this instancе because “a different procedure is specified by statute or rule.” Without the three-day extension, plaintiffs actiоn was time barred. The trial court did not err in granting summaiy judgment to defendants.
Plaintiff also assigns as error the trial court’s denial of his motion for leave to amend the complaint. Plaintiff sought to include a cause of action for intentional infliction of еmotional distress, which carries a two-year statute of limitations. We review the trial court’s denial for abuse of discretion.
Jackson Co. v. Jackson Education Serv. Dist.,
A pleading may be amended once as a matter of right; leave to amend thereafter is granted only by written consent of the adverse party or at the discretion of the trial court. However, leave to amend shall be freely given when justice so requires. ORCP 23 A. Abuse of that discretion occurs when a court exercises its discretion in a manner unjustified by, and clearly against, reason and evidence.
Far West Landscaping, Inc. v. Modern Merchandising, Inc.,
Affirmed.
Notes
ORS 659.410(1) provides:
“It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has apрlied for benefits or invoked or utilized the procedures provided for in ORS chapter 656 or of ORS 659.400 to 659.460 or has given testimony under thе provisions of such sections.”
The other defendants besides Roseburg Forest Products, Inc. were four of plaintiffs coworkеrs at the company.
ORCP 10 C provides:
“Except for service of summons, whenever a party has the right or is required to do some act оr take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served by mail, 3 days shall be added to the prescribed period.”