Williams v. City of Salem

392 June 18, 2025 No. 555 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON Adam Corey WILLIAMS, Plaintiff-Appellant, v. CITY OF SALEM, Defendant-Respondent. Marion County Circuit Court 22CV09486; A179588 Audrey J. Broyles, Judge. Argued and submitted March 4, 2024. Carl Post argued the cause for appellant. Also on the briefs was John Burgess. Thomas M. Christ argued the cause for respondent. Also on the brief was Sussman Shank LLP. Before Ortega, Presiding Judge, Powers, Judge, and Hellman, Judge. HELLMAN, J. Affirmed. Nonprecedential Memo Op: 341 Or App 392 (2025) 393 HELLMAN, J. Plaintiff appeals a trial court’s judgment of dis- missal of his tort claims against the City of Salem. The trial court dismissed the case on two grounds: that the court lacked subject matter jurisdiction over the tort claims because plaintiff did not allege or prove that he provided timely notice of the claims to defendant, as required by the Oregon Tort Claims Act (OTCA), and that plaintiff’s claims were precluded by pending federal court litigation. We conclude that the trial court did not err in dismissing the case for lack of subject matter jurisdiction and thus do not address plaintiff’s other arguments. Accordingly, we affirm. After a federal district court dismissed plain- tiff’s federal action containing federal constitutional and state tort claims against a police officer from the City of Salem, and after appealing that judgment to the Ninth Circuit, plaintiff initiated a state court action.1 The state action alleged that the officer committed certain torts during a traffic stop of plaintiff that occurred on or about January 17, 2017. The trial court substituted the City of Salem for the individual officer as the named defendant in the case in accordance with ORS 30.265(3).2 Defendant then moved to dismiss the tort claims. As relevant here, defendant asserted that the state court lacked subject matter jurisdiction under ORCP 21 A(1)(a) because plaintiff failed to allege and prove that he provided timely notice of the claims under the OTCA. In opposing the motion to dismiss, plaintiff submitted a declaration in which he claimed to have provided actual and formal notice of the tort claim through online, telephonic, and written communications with the city prior to the expiration of the statute of limitations. See ORS 30.275(2)(b), (3) - (6) (defin- ing actual and formal notice and providing procedures to 1 The federal court dismissed the federal claims, declined to exercise supple- mental jurisdiction over the state claims, and “remanded” the case to state court. That remand was mistaken, however, because the case did not originate in state court; it originated in federal court. 2 ORS 30.265(3) provides that, in a case like plaintiff’s, “the sole cause of action for a tort committed by officers, employees or agents of a public body acting within the scope of their employment or duties and eligible for representation and indemnification * * * is against the public body.” 394 Williams v. City of Salem satisfy such notice). In reply, defendant submitted declara- tions from city employees who disputed the availability of online tort claim submissions at the time plaintiff claimed to have made one and disputed that the city had received any tort claim notice from plaintiff before a July 27, 2017, letter, which was untimely for notice under the OTCA. The trial court dismissed the case, concluding that it lacked sub- ject matter jurisdiction. This appeal followed. On appeal, plaintiff argues that the trial court erred in declining to treat defendant’s motion to dismiss as one for summary judgment because, in his view, his decla- ration regarding timely notice created a question of fact for a jury to resolve. He further argues that, viewing the case through summary judgment standards, he provided suffi- cient evidence from which a jury could conclude that he gave timely notice. We first conclude that the trial court did not err in declining to treat the motion to dismiss as one for summary judgment. “When a defendant asserts that a plaintiff’s claims are subject to the OTCA and that the plaintiff failed to give timely notice, it raises a question of subject matter jurisdiction.” Kutz v. Lee, 291 Or App 470, 480, 422 P3d 362 (2018); Urban Renewal Agency v. Lackey, 275 Or 35, 40 n 4, 549 P2d 657 (1976) (citing additional cases). That jurisdic- tional question is properly addressed under ORCP 21 A(1)(c), which provides for dismissal when the court lacks subjec