Patricia Holloway v. Clackamas River Water

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 10 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA HOLLOWAY, No. 20-35888
Plaintiff-Appellant, D.C. No. 3:13-cv-01787-AC
v.
MEMORANDUM*
CLACKAMAS RIVER WATER; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, Chief District Judge, Presiding
Submitted August 10, 2022**
Before: WALLACE, D.W. NELSON, and FERNANDEZ, Circuit Judges.
Patricia Holloway, a former commissioner on the board of Clackamas River
Water, appeals from the district court’s judgment dismissing with prejudice her
First Amendment retaliation claim brought under 42 U.S.C. § 1983 following
remand from our court. We have jurisdiction under 28 U.S.C. § 1291. We review
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Holloway’s request for oral
argument, contained in her Opening Brief, is denied.
the district court’s dismissal of an action on statute of limitations grounds de novo.
Gregg v. Hawaii, Dep’t of Pub. Safety, 870 F.3d 883, 886-87 (9th Cir. 2017). We
affirm.
The law of the case doctrine does not require the district court to find the
First Amendment retaliation claim timely because our court did not rule on the
timeliness of that claim in Holloway’s previous appeal. See Lujan v. Hughes
Aircraft Co., 243 F.3d 1181, 1186 (9th Cir. 2001) (“The law of the case doctrine
requires a district court to follow the appellate court’s resolution of an issue of law
in all subsequent proceedings in the same case,” but “[t]he doctrine does not apply
to issues not addressed by the appellate court”); see also Holloway v. Clackamas
River Water, 739 F. App’x 868, 869-70 (9th Cir. 2018).
The district court properly found the First Amendment retaliation claim is
barred by the statute of limitations because the claim accrued more than two years
before Holloway amended the complaint to state the claim and add allegations
related to it. See Or. Rev. Stat. § 12.110(1) (two-year statute of limitations for
personal injury claims); Soto v. Sweetman, 882 F.3d 865, 871-72 (9th Cir. 2018)
(reasoning that while state statutes of limitations apply to § 1983 actions, federal
law governs when a claim accrues, which is “when the plaintiff knows or has
reason to know of the injury which is the basis of the action” (citation and internal
quotation marks omitted)). It properly rejected Holloway’s contention that the
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claim relates back to the original complaint and therefore is timely because the
original complaint made no reference to the conduct on which the claim is based.
See Fed. R. Civ. P. 15(c)(1)(B) (“An amendment to a pleading relates back to the
date of the original pleading when . . . the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out—or attempted to be
set out—in the original pleading[.]”).
To the extent that the statute of limitations defense was available to
defendants and therefore should not have been omitted from their previous motions
to dismiss, any error in the district court’s decision to consider the issue was
harmless. See Fed. R. Civ. P. 12(g)(2) (“Except as provided in Rule 12(h)(2) or (3),
a party that makes a motion under this rule must not make another motion under
this rule raising a defense or objection that was available to the party but omitted
from its earlier motion.”); In re Apple iPhone Antitrust Litig., 846 F.3d 313, 318-
19 (9th Cir. 2017) (reasoning that any error in the district court’s decision to
consider a defense that could have been raised in an earlier motion was harmless
where defendants did not act with a “strategically abusive purpose,” and failing to
consider the defense would serve “no apparent purpose”).
AFFIRMED.
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