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July 14, 1945


The opinion of the court was delivered by: LEAVY

This matter was presented to the court on the defendant's motion for a summary judgment seeking a dismissal of the plaintiff's action. The motion for a summary judgment is based upon Rules 12(c) and 56(b), Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c.

The case is at issue and ready to be set down for trial. The defendant pleads the Oregon Statute of Limitations and the Oregon Law of Partnership, and the allegations in this regard have been admitted by the plaintiff in his reply.

 The motion was heard by the court on oral argument on May 7, 1945, and the defendant relied upon two grounds in support of his motion: First, that the asserted claim for damages grew out of the negligent operation of a co-partnership business, of which co-partnership the defendant was a member; second, that the action was barred by the statute of limitations of the State of Oregon, where the injury occurred.

 Following the argument, the matter was taken under advisement, and the court asked that counsel submit written briefs touching on the issue of the statute of limitations.

 Each of the parties was given a limited time in which to file a memorandum of authorities; the defendant was first to submit his authorities on or before May 15, 1945, which he did, and the plaintiff was given until June 1. On June 1, plaintiff applied to have the time extended to and including June 15, 1945, in which to file his memorandum of authorities. This application was granted by a formal order. The plaintiff to this date has failed to file any memorandum of authorities, and the court makes a disposition of the motion without the aid of such memorandum.

 The contention of the plaintiff was that the Washington Statute of Limitations applied, while the defendant contended that the Oregon Statute applied. The court is of the opinion and finds that the Oregon Statute of Limitations must be given application in this cause, since it is in that State where the alleged injury and damages took place and the right of action rose. The date of the claimed injury is April 17, 1942. The action was commenced in this court by the filing of a complaint on October 5, 1944. The Oregon statute fixes the limitation for an action of this nature at two years, while the Washington statute has a three year limitation.

 Having found that the Oregon Statute of Limitations and not the Washington Statute applies, we come then to the question raised by the plaintiff that even though the court should hold the Oregon Statute of Limitations should apply, the allegations of the plaintiff, which are admitted by defendant, are that the defendant during all times subsequent to the date of plaintiff's injury was absent from the State of Oregon, and under such circumstances, the Oregon Statute of Limitations would be tolled.

 The issue raised by the defendant's motion as to whether an action against one member of a co-partnership in a tort action, such as we have here, is a joint liability and not a joint and several one, need not be considered, in view of the court's finding that this action is governed by the Oregon Statute of Limitations. The State of Oregon had adopted, and had in effect at the time liability herein arose, the Uniform Partnership Act.

 The plaintiff's action, being governed by the Oregon Statute of Limitations, is therefore barred by the two year limitation, unless the further provision in the Oregon Statute relative to tolling the same during the absence of the defendant from that State, must be given application. The authorities cited by the defendant in his memorandum, together with others that the court has examined, clearly establish the law to be that the provision in the Oregon Statutes, tolling the same during a party's absence from the state, have no application in the instant case. This action is brought in a Federal Court, and such court's process at all times since the date of the origin of the cause of action could have been invoked as against the defendant herein, irrespective of whether he was within or without the State of Oregon. The absence of the defendant from the State of Oregon in no manner affected the plaintiff's right to bring the action in this court, since the amount involved and the diversity of citizenship appear as facts in the pleadings, and the case is therefore governed by the law as announced in the following cases: Stern v. La Compagnie Generale Transatlantique, D.C., 110 F. 996; Pond Creek Mill & Elevator Co. v. Clark, 7 Cir., 270 F. 482; The Harrisburg, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358; Davis v. Mills, 194 U.S. 451, 24 S. Ct. 692, 48 L. Ed. 1067.

 All of the foregoing authorities support the rule that if an action is barred by the law of the state where it has its origin, under facts such as are here admitted by the pleadings, the same would likewise be barred in a federal court, even where such federal court is located in another state.

 In the Stern case, supra (110 F. 1000), the court said:

 'Under such circumstances there is no sound reason why in this suit founded solely upon the New Jersey statute and brought in a federal court, the time limit of the statutory proviso should not be applied according to its terms.'

 In that case, as in the case at bar, the action was brought in a Federal Court in a state other than the one where the cause of action arose; the state where the action originated being New Jersey, and where it was instituted being New York; and, there, as here, it was contended that the defendant was not a resident of the State of New Jersey, and could not be served with process therein, and, therefore, the absence of the defendant from the State of New Jersey had the effect of tolling that state's statute of limitations. The situation in reference to the ...

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