Cannon v. Dept. of Justice

Plaintiff commences a timely action under the Oregon Tort Claims Act, and ORS 30.275(2)(b), when he files an action within 180 days of injury and serves Defendant within 60 days of filing.

Philip Scott Cannon (Cannon) appeals the trial court's decision to grant the Oregon Department of Justice's (DOJ) motion to dismiss. Cannon claims under the Oregon Tort Claims Act (OTCA) and ORS 30.275(2)(b), that he maintained a tort action against a public body, officer, its employees, or agents by "commencing" the action within 180 days of his injury. Cannon was convicted of three counts of murder in 2000, and was granted post-conviction relief in 2009 due to the state's mishandling of evidence and flawed forensic analysis. Cannon filed a complaint alleging tort claims against the Oregon Department of Justice, Oregon State Police, Oregon State University, Oregon Public Defense Services, as well as his appointed appellate counsel in his criminal case. Plaintiff served summons on Defendants on both March 4, 2010, and March 5, 2010, 180 days after release. DOJ moved to dismiss all of Cannon's claims under ORCP 21, stating Cannon failed to "commence" the action within 180 days under the OCTA. The trial court agreed with DOJ, finding under this particular class of cases, a Plaintiff must file and serve a Defendant within 180 days of injury. The court finds that "commencement of action" and "commence" under both Baker v. City of Lakeside, 343 Or 70 (2007), and ORS 30.275(9), have the same meaning as "commence" under ORS 12.020, which defines commencement in the context of the statute of limitations. This is satisfied when the "complaint is filed, and the summons is served on Defendant...." Further, "if the first publication of summons on other service of summons in action occurs before the expiration of 60 days after the date on which the complaint in the action... shall be deemed to have commenced." The Court finds the trial court erred in granting DOJ's motion to dismiss, and Plaintiff commenced his tort claim in a timely manner under OTCA. Reversed and Remanded.