Oregon Wrongful Imprisonment Time-Bar Dismissal Reversed

On March 26, 2014, the Oregon Court of Appeals held that if service of summons is completed within 60 days of filing a tort claim against a public body, the action is commenced the day the complaint is filed.

Under the Oregon Tort Claims Act (OTCA), a tort action may not be brought against a public body, its officers, employees, or agents, unless “notice of claim” is given “within 180 days after the alleged loss or injury.” ORS 30.275(2)(b). Filing suit within that 180-day period constitutes “notice of claim.”

In 2000, Philip Scott Cannon was wrongfully convicted of three counts of murder and sentenced to life in prison. On September 2, 2009, the state stipulated to entry of a post-conviction judgment that set aside those convictions due to flawed forensic analysis, evidence mishandling, and other issues.

Under the OTCA, Cannon had until March 1, 2010 – 180 days from September 2, 2009 - to provide notice of his claim. He provided that notice by filing a state court action on February 26,2010, alleging various tort claims against the Oregon Department of Justice, the Oregon State Police, Oregon State University (which tested evidence for the prosecution), Oregon Public Defense Services, and Cannon’s court-appointed appellate counsel.

Cannon did not serve the summons on those defendants until the following week, on March 4, 2010 and March 5, 2010 - three and four days outside the 180-day time limit imposed by ORS 30.275(2)(b).

The trial court granted Defendants’ motion to dismiss. In doing so, the court rejected Cannon’s reliance upon ORS 12.020(2), which provides that if service of summons is completed within 60 days of the date the complaint was filed, the action is commenced the date the complaint was filed. The trial court concluded that ORS 12.020 does not extend to OTCA actions.

The Oregon Court of Appeals reversed, holding that the legislature intended ORS 12.020 to extend to OTCA actions. In reaching that conclusion, the court observed that the Ninth Circuit reached the same conclusion in a different action that Cannon brought against several other public officials. See: Cannon v. Polk County District Attorney, 501 Fed Appx. 611 (9th Cir. 2012).

The Court concluded “that the trial court erred in interpreting the statute to require both filing of the complaint and service of the summons within 180 days of the alleged injury.” Since Cannon served the summons within 60 days of filing his complaint, the action was commenced on February 26, 2010 and the trial court “erred in granting defendants’ motion to dismiss on the basis of untimely notice.”

See: Cannon v. Oregon Department of Justice, 261 Or. App. 680, 322 P.3d 601 (2014).

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