Yamaha Motor Corp., U.S.A. v. Gateway Motorcycles, Inc., 89-35250
| Decision Date | 24 April 1991 |
| Docket Number | No. 89-35250,89-35250 |
| Citation | 914 F.2d 265 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. YAMAHA MOTOR CORPORATION, U.S.A., Plaintiff-Appellee v. GATEWAY MOTORCYCLES, INC., Defendant-Appellant and Robert F. Jolin, Defendant |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before WALLACE, SKOPIL and BRUNETTI, Circuit Judges.
This action arises because Gateway Motorcycle, Inc. ("Gateway"), which operates two Yamaha dealerships in the Portland area, sued Yamaha Motor Corp. ("Yamaha"), its distributor, Dean Collins ("Collins"), the Yamaha Oregon District Manager, and Beaverton Honda-Yamaha ("Beaverton"), a competing dealership, in Oregon state court, alleging that the defendants had violated Oregon's Anti-Price Discrimination Law, O.R.S. Sec. 646.040, and that Yamaha had violated certain contracts.
Gateway alleges that on July 9, 1982, Yamaha agreed to sell Beaverton 556 new motorcycles at discounts ranging from five to twenty percent; these discounts totaled some $400,000. According to Gateway, the first order date for these motorcycles was August 10, with the first invoice issued August 19 and other invoices issued as late as 1983. Gateway further contends that Yamaha did not make such discounts available to Gateway or other Oregon dealers, which led to substantial damages to Gateway and the subsequent closure of Gateway's dealerships.
In March, 1986, ITT Commercial Finance Corp. ("ITT") instituted a foreclosure action against Gateway, also naming Yamaha as a defendant. See ITT Finance Corp. v. Gateway Motorcycle, Inc., No. A8603-01386 (Multnomah Cty.Cir.Ct. filed March, 1986). On July 7, 1986 Gateway cross-claimed against Yamaha, alleging that Yamaha had violated Oregon's Anti-Price Discrimination Law, O.R.S. Sec. 646.040 in its dealings with Beaverton. This cross claim was voluntarily dismissed pursuant to an order stipulated by both Yamaha and Gateway.
On July 28, 1986 Gateway sued Yamaha, Beaverton, and Collins in Oregon county circuit court, alleging a violation of Oregon's Anti-Price Discrimination Law, identical to the ITT cross claim above. See Gateway Motorcycle, Inc. v. Yamaha Motor Corp., No. A8607-04514 (Multnomah Cty.Cir.Ct. filed July 28, 1986). Gateway later added contract claims against Yamaha only. Shortly before trial, Gateway and Beaverton settled and Beaverton was dismissed. On December 14, 1987, the remaining defendants, Yamaha and Collins, filed a petition for removal in the federal district court, as the parties were now diverse. The federal action was docketed as Gateway Motorcycle, Inc. v. Yamaha Motor Corp., No. 87-1379MA (D.Ore. removed Dec. 14, 1987).
Gateway moved for remand of this action back to state court, contending that Yamaha did not file a notice of removal in the state court until January 27, 1988, 41 days after the removal petition had been filed in the district court. 1 In response, Judith A. Martin, a legal assistant employed by Yamaha's counsel, testified by affidavit that on December 14, 1987 she "mailed copies of these documents to plaintiff's counsel" and deposited copies of them "in the box for filing located in Room 210 of Multnomah County Circuit Court." Linda L. Marshall, an attorney for Yamaha, testified by affidavit that she had prepared the proper papers and that on December 14, 1987 gave them to Martin for delivery and filing, which Martin reported back that day had been accomplished. The district court denied Gateway's motion.
In August, 1987, Yamaha filed suit in federal district court against Gateway, alleging contract and quasi-contract claims for Gateway's alleged failure to pay for received goods. See Yamaha Motor Corp. v. Gateway Motorcycle, Inc., No. 87-912MA (D.Ore. filed Aug. 12, 1987). On November 6, 1987 Gateway filed mandatory counterclaims against Yamaha, alleging the same contract and anti-price discrimination claims previously alleged in 87-1379MA.
The district court subsequently consolidated the two federal actions (87-912MA and 87-1379MA) and dismissed Gateway's counterclaims in 87-912MA, as the identical claims appeared in the complaint of 87-1379MA. On March 14, 1989 the district court dismissed Gateway's anti-price discrimination claims by summary judgment. 2 The court found that these claims accrued on July 9, 1982, the date of the alleged Yamaha-Beaverton contract, and that Gateway filed its claims on July 28, 1986, beyond the four-year statute of limitations period in effect at the time of filing, as provided by O.R.S. Sec. 646.140(2). The court also held that the "saving" provision of O.R.S. Sec. 12.220 was not applicable, as Gateway's claim in the ITT suit, which was within the four year period, was voluntarily dismissed.
Gateway appeals (1) the December 14, 1987 removal of the state court action to federal court (renumbered 87-1379MA) and (2) the March 21, 1989 dismissal of the anti-price discrimination claims as time-barred. Gateway also seeks attorney's fees on the appeal. We affirm the district court's decision on both issues.
Gateway contends that the district court erred in failing to remand 87-1379MA back to state court, because Yamaha did not file a notice of removal with the state court until January 27, 1988, forty-one days after filing its petition for removal, and thus failed to meet the promptness requirement of the federal removal statute, 28 U.S.C. Sec. 1446(e). Yamaha argues that the district court implicitly found that Yamaha did file a copy of the petition with the state court and had served a copy on Gateway on December 14, 1987, the same day it filed the petition for removal with the district court. Yamaha further argues that even if the district court did not find that such a notice was filed, the prompt notice to Gateway serves as a "saving factor." See Manufacturers & Traders Trust Co. v. Hartford Acc. & Indem. Co. 434 F.Supp. 1053, 1055 (W.D.N.Y.1977) ().
The federal removal statute requires:
Promptly after the filing of such petition for removal of a civil action and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal....
28 U.S.C. Sec. 1446(e) (emphasis added).
The statutory removal requirements of Sec. 1446 "are strictly construed against removal." Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979). See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction, Sec. 3721 at 216-17.
Whether Yamaha filed a timely notice of remand in the state court is a factual question resolved by the district court. We review such factual determinations under the "clearly erroneous" standard. Fed.R.Civ.Pro. 52(a). Although the district court did not state specific reasons in its denial of Gateway's motion to remand, the district court did implicitly find that Yamaha timely filed the petition for removal with the state court. Based upon the two affidavits submitted by Yamaha, it was not clear error for the district court to find that Yamaha had in fact deposited the notice of removal in the state court filing box on December 14, 1987, which satisfies the promptness and notice requirements of Sec. 1446(e). 3 Therefore, the district court properly denied Gateway's motion to remand the action back to state court.
1. Gateway first argues that because its cause of action accrued on July 9, 1982, and the statute of limitations applied by the district court, O.R.S. Sec. 646.140(2), which provides a four-year time period, was not passed into law until July 26, 1983, the district court erred in applying retroactively the statute in effect at the time of filing. Gateway contends that the applicable statute is that which was in effect at the time of the accrual of the cause of action. Gateway believes that O.R.S. Sec. 12.080(2), which provides a six-year period, was the statute in effect at the time of the accrual of the cause of action, which would not time-bar Gateway's claim. Yamaha argues that Gateway failed to preserve this issue for appeal, as Gateway did not raise it before the district court. Alternatively, Yamaha argues that Sec. 646.140(2) was properly applied, or if not, O.R.S. Sec. 12.100(2), which provides a three-year period, is the applicable statute.
We conclude that the district court properly applied Sec. 646.140(2). Oregon law provides that amendments to statutes of limitations that decrease the length of the time period are not usually given retroactive effect, absent clear legislative intent to the contrary. See Bergstad v. Thoren, 86 Or.App. 70, 73, 738 P.2d 223, 224 (1987) ; see also Bower Trucking and Warehouse Co. v. Multnomah County, 35 Or.App. 427, 582 P.2d 439, 442 (1978). The amendment to Sec. 646.140 was approved by the Oregon legislature on July 26, 1983, and became effective January 2, 1984. The more than five month delay in the effective date manifests the clear intention of the legislature that the amended limitations period be applied retroactively. See Bower, 582 P.2d at 443 (Buter, J., dissenting)...
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