Tarr v. Usf Reddaway, Inc.

Motion for Partial Summary Judgment . Oral Argument requested.

D. Or.July 10, 2017

DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT Michael J. Estok, OSB #090748 Email: mestok@lindsayhart.com LINDSAY HART, LLP 1300 SW Fifth Avenue, Suite 3400 Portland, Oregon 97201-5640 Phone: 503-226-7677 Fax: 503-226-7697 Attorneys for Defendant USF Reddaway Inc. Ruth Segal, CA Bar # 126324 Ruben Escobedo III, CA Bar # 277866 LYNBERG & WATKINS, APC 1150 S. Olive Street, Eighteenth Floor Los Angeles, California 90015 Phone: (213) 624-8700 Fax: (213) 892-2763 Email: rsegal@lynberg.com Specially admitted, pro hac vice Co-counsel for Defendant USF Reddaway Inc IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION WILLIAM TARR, as Personal Case No.: 3:2015-cv-02243-PK Representative of the ESTATE OF CONNOR WILLIAM TARR, Plaintiff, DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY v. JUDGMENT USF REDDAWAY, INC., an Oregon Pursuant to Fed.R.Civ.P. 56 Corporation, Request for Oral Argument Defendant. _________________________________ Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 1 of 29 DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT 4836-9208-2250, v. 1 TABLE OF CONTENTS I. MOTION ......................................................................................................... 1 II. SUMMARY OF ARGUMENT ......................................................................... 2 A. Oregon’s Cap on Noneconomic Damages Applies to This Case ............. 2 B. Punitive Damages Cannot Be Awarded in This Negligence Action ......... 2 C. Federal Law Makes Marijuana Illegal and Plaintiff’s Claim for Economic Damages Are Barred under the Federal Supremacy Doctrine .................. 3 III. STATEMENT OF FACTS .............................................................................. 3 A. Parties ...................................................................................................... 3 B. The Motor Vehicle Accident ...................................................................... 4 IV. POINTS AND AUTHORITIES ......................................................................... 5 A. Plaintiff’s Claims are Subject to Oregon’s $500,000 Cap on Non-Economic Damages [ORS 31.710(1)] as a Matter of Law .................. 6 1. Partial Summary Judgment may be granted where Oregon’s damages cap applies ..................................................................... 6 2. Oregon law applies under conflict-of-law principles ........................ 7 B. There is No Genuine Dispute of Material Fact Regarding Plaintiff’s Claim for Punitive Damages, Which Should be Dismissed ...................... 12 C. Plaintiff’s Marijuana Business is Prohibited under Federal Law, and Plaintiff is Barred from Recovering Damages Arising from a Criminal Enterprise ................................................................................................ 17 V. CONCLUSION .............................................................................................. 23 CERTIFICATE OF COMPLIANCE ................................................................................ 24 Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 2 of 29 DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT 4836-9208-2250, v. 1 TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 [106 S.Ct. 2505, 91 L.Ed.2d 202] (1986) ............................................ 5 Arenas v. United States Trustee, 535 B.R. 845 (10th Cir. BAP 2015) ......................................................................... 22 Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299 (1985) ................................................................................................ 20 C.D. Johnson Lumber Co. v. Leonard, 192 Or. 639 [236 P.2d 926] (1951) .......................................................................... 20 Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047 (9th Cir. 2011) ................................................................................... 5 Canton v. Hauge, 72 Or.App. 548 [696 P.2d 1126] (1985) ................................................................... 13 Casey v. Manson Constr. & Engineering Co., 247 Or. 274 [428 P.2d 898] (1967) ............................................................................ 7 Celotex Corp. v. Catrett, 477 U.S. 317 [106 S.Ct. 2548, 91 L.Ed.2d 265] (1986) ............................................ 5 Chamberlain v. Jim Fisher Motors, Inc., 282 Or. 229 [578 P.2d 1225] (1978) ........................................................................ 16 Clicks Billiards, Inc. v. Sixshooters Inc., 251 F.3d 1252 (9th Cir. 2001) ................................................................................... 5 Coneff v. AT&T Corp., 673 F.3d 1155 (9th Cir. 2012) .................................................................................. 7 De Foor v. Lematta,. 249 Or. 116 [437 P.2d 107] (1968) .......................................................................... 10 Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001) ................................................................................... 11 Druggan v. Anderson, 269 U.S. 36 (1925) .................................................................................................. 18 Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Or. 159 [230 P.3d 518] (2010) ..................................................................... 21-22 Friendship Auto Sales, Inc. v. Bank of Williamette Valley, Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 3 of 29 DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT 4836-9208-2250, v. 1 300 Or. 522 [716 P.2d 715] (1986) .......................................................................... 12 Gonzales v. Raich, 545 U.S. 1 (2005) ................................................................................................ 3, 18 Greist v. Phillips, 322 Or. 281 [906 P.2d 789] (1995) .......................................................................... 11 Harrell v. Travelers Indem. Co., 279 Or. 199 [567 P.2d 1013] (1977) ........................................................................ 16 Higgins v. McCrea, 116 U.S. 671 (1886) ............................................................................................... 21 Hughes v. PeaceHealth, 344 Or. 142 [178 P.3d 225] (2008) ............................................................................ 6 Ibanez v. Bettazza, No. 3:11-cv-01518-SI, 2013 U.S. Dist. LEXIS 44531 (D.Or. Mar. 28, 2013), ................................................................................ 14, 15, 16 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 [106 S.Ct. 1348, 89 L.Ed.2d 538] (1986) .......................................... 5-6 Myers v. Cessna Aircraft Corp., 275 Or. 501 [553 P.2d 355] (1976) .................................................................. 7, 9, 10 Olive v. Comm'r, 792 F.3d 1146 (9th Cir. 2015) ................................................................................. 22 Portland Trailer & Equip. v. A-1 Freeman Moving & Storage, 182 Or.App. 347 [49 P.3d 803] (2002) ....................................................................... 8 Powell v. Sys. Transp., 83 F.Supp.3d 1016 (D.Or. 2015) ............................................................................... 7 Prasnikar v. Our Savior's Lutheran Church of Lake Oswego, 79 F.Supp.3d 1184 (D.Or. 2015) ............................................................................... 6 Roe v. TeleTech Customer Care Mgmt. LLC, 171 Wash.2d 736 [257 P.3d 586] (2011) ................................................................. 22 Ross v. RagingWire Telecommunications, Inc., 42 Cal.4th 920 [70 Cal.Rptr.3d 382] (2008) ............................................................. 21 Rutkin v. Reinfeld, 229 F.2d 248 (2d Cir. 1956) .................................................................................... 21 Schmidt v. Pine Tree Land Dev. Co., 291 Or. 462 [631 P.2d 1373] (1981) ........................................................................ 17 Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 4 of 29 DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT 4836-9208-2250, v. 1 Teem v. Doubravsky, No. 3:15-cv-00210-ST, 2015 U.S. Dist. LEXIS 182346 (D.Or. Aug. 14, 2015) .......... 6 Teem v. Doubravsky, No. 3:15-cv-00210-ST, 2015 U.S. Dist. LEXIS 182293 (D.Or. Oct. 1, 2015) ............. 6 Tenold v. Weyerhaeuser Co., 127 Or.App. 511 [873 P.2d 413] (1994) ................................................................... 11 Thomas v. Guerrero, 285 Or. 95 [589 P.2d 1112] (1979) .......................................................................... 13 Tomlin v. Boeing Co., 650 F.2d 1065 (9th Cir. 1981) ................................................................................. 11 Tower v. Schwabe, 284 Or. 105 [585 P.2d 662] (1978) .......................................................................... 10 Wilson v. Tobiassen, 97 Or.App. 527 [777 P.2d 1379] (1989) .............................................................. 13-14 Zumwalt v. Lindland, 239 Or. 26 [396 P.2d 205] (1964) ............................................................................ 13 Statutes 21 U.S.C. § 801 ........................................................................................................... 19 21 U.S.C. § 812 ................................................................................................. 3, 18, 21 21 U.S.C. § 844 ........................................................................................................... 19 Or. Rev. Stat. § 15.440 ............................................................................................ 8, 12 Or. Rev. Stat. § 15.445 .......................................................................................... 2, 8, 9 Or. Rev. Stat. § 31.710, subd. (1) ..................................................................... 1, 2, 6, 7 Or. Rev. Stat. § 31.730, subd. (1) ............................................................................... 12 Other F.R.Civ.P. 56 ............................................................................................................. 1, 5 Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 5 of 29 1 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT STATEMENT OF COMPLIANCE [L.R. 7.1] Pursuant to L.R. 7-1, counsel for Defendant USF Reddaway Inc. certifies that the parties made a good-faith effort to resolve the dispute by conferring by telephone on February 10, 2017, but were unable to resolve any of the issues presented in this motion. I. MOTION Gerald Truelove1 was employed by Defendant USF Reddaway Inc., an Oregon corporation. Plaintiff William Tarr, a resident of Washington, is the personal representative of the estate of his son, Connor W. Tarr, who, plaintiff alleges, was a Washington resident at the time of this accident. Plaintiff alleges that Truelove negligently caused a motor vehicle accident in California, and that Defendant USF Reddaway is liable to Plaintiff for wrongful death. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendant USF Reddaway Inc. moves for an order granting partial summary judgment on the grounds that 1) Plaintiff’s claim for noneconomic damages in excess of $500,000 is barred by ORS 31.710(1); 2) there is insufficient evidence to support Plaintiff’s claim for punitive damages; and 3) Plaintiff cannot recover economic damages in federal court for any lost earnings claimed from a cannabis business, which is an illegal enterprise under federal law. / / / / / / 1 Mr. Truelove is not a defendant. In April of 2016, this Court dismissed Mr. Truelove for lack of jurisdiction. Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 6 of 29 2 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT II. SUMMARY OF ARGUMENT A. Oregon’s Cap on Noneconomic Damages Applies to This Case. Under Oregon law, which is binding in this diversity action, “the amount awarded for noneconomic damages shall not exceed $500,000” in wrongful death actions. See ORS 31.710(1). The question in this case is whether Plaintiff can avoid Oregon law simply because the accident occurred in California. Where, as here, both the plaintiff and defendant reside outside of the state of the accident, the governing case law unanimously rejects the idea that the law of the accident site should apply. Under the applicable test, the Court must determine which state has the strongest relationship and interest regarding the issue of damages. See ORS 15.445. The forum state of Oregon has the strongest interest on the issue of damages based on its policy of protecting resident businesses from jury verdicts awarding unlimited noneconomic damages. On the other hand, because none of the parties resides in California, California has no interest regarding the amount of a foreign judgment by a foreign plaintiff against a foreign defendant. Thus, the Court should find that ORS 31.710(1) applies in this action and grant summary judgment on this issue in favor of USF Reddaway. B. Punitive Damages Cannot Be Awarded in This Negligence Action. It is well-settled that punitive damages are not recoverable for acts of negligence where there is no evidence of aggravating factors such as malice or bad faith. Plaintiff seeks punitive damages against USF Reddaway for an unintentional motor vehicle collision. While the accident was tragic, there is no evidence that USF Reddaway acted with the requisite conduct to support a claim for punitive damages. Plaintiff has produced no evidence to support anything other than a simple negligence case. Thus, Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 7 of 29 3 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT the Court should find that Plaintiff is not entitled to punitive damages and grant summary judgment on this issue in favor of USF Reddaway. C. Federal Law Makes Marijuana Illegal and Plaintiff’s Claim for Economic Damages Are Barred under the Federal Supremacy Doctrine. It should go without saying that a court will not award damages for loss of a criminal enterprise. This is precisely what Plaintiff seeks with his claim for $4,675,000 in lost earnings. Plaintiff’s discovery responses clearly establish this claim is based on an enterprise — a cannabis business in Washington state — which is illegal under federal law. Growing, possessing, and selling marijuana is a criminal offense, as it is a Schedule I drug [21 U. S. C. § 812(c)(1)] on par with LSD [§ 812(c)(9]] and amphetamines [§ 812(c)(1)] in the eyes of the United States government. The U.S. Supreme Court has held that federal law is the supreme law of the land in this area. See Gonzales v. Raich, 545 U.S. 1, 29 (2005). It makes no difference that the enterprise is legal under Washington state law. Defendant is entitled to summary judgment that Plaintiff is not entitled to recover economic losses arising out of an enterprise in violation of federal law. III. STATEMENT OF FACTS A. Parties Plaintiff William Tarr, a Washington resident, alleges that he is the personal representative of the estate of his deceased son Connor W. Tarr. See First Amended Complaint (“FAC”), at ¶ 1, ECF #44. Plaintiff brings this action on behalf of the estate. Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 8 of 29 4 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT See FAC, Introductory Paragraph. Plaintiff alleges his son was a citizen of Washington at the time of his son’s death. See FAC, at ¶ 2. Defendant USF Reddaway Inc. is an Oregon corporation. See FAC, at ¶ 3. Plaintiff claims that USF Reddaway “is engaged generally in the business of over-the- road transportation of material goods.” See FAC, at ¶ 7. The tractor-trailers involved in this accident were licensed and registered in Oregon. See FAC, at ¶ 10; CHP Report, at p. 1, Ex. C to Segal Decl. B. The Motor Vehicle Accident Plaintiff alleges that on December 19, 2014, Truelove was driving a truck on behalf of Defendant USF Reddaway northbound on Interstate 5 in Los Banos, Merced County, California. See FAC, at ¶ 13. Truelove’s tractor-trailer was traveling behind a car driven by Daniel Jones; Connor Tarr was a passenger in Mr. Jones’ car. See FAC, at ¶¶ 14-15. Plaintiff alleges that as the vehicles entered a construction zone, Truelove failed to slow the truck, resulting in a rear-end collision and the death of Connor Tarr. See FAC, at ¶¶ 14-15. On November 30, 2015, Plaintiff filed this action in this Court in Oregon, sitting in diversity, for wrongful death. Plaintiff brings two claims: (1) Negligence; and (2) Negligence Per Se. Both claims are based on Plaintiff’s contention that Truelove and USF Reddaway, in its own capacity and as the employer of Truelove, were negligent by speeding, failing to control the truck, failing to heed the construction zone, and operating the truck while Truelove’s ability or alertness was allegedly impaired. See FAC, at ¶¶ 20-21, 24-25. Plaintiff contends that USF Reddaway was negligent in hiring, training, Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 9 of 29 5 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT and supervising Truelove, and failing to install unidentified safety equipment on the truck. See FAC, at ¶ 20. IV. POINTS AND AUTHORITIES Standard for Summary Judgment A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The court views the evidence in a light most favorable to the non-moving party. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). However, inferences from the evidence must be reasonable and based on admissible evidence, and not Plaintiff’s speculation. “To survive summary judgment, a plaintiff must set forth non-speculative evidence of specific facts, not sweeping conclusory allegations.” United States ex ret. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [in] ruling on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient….” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non- moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 10 of 29 6 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citation and quotation marks omitted). A. Plaintiff’s Claims Are Subject to Oregon’s $500,000 Cap on Non- Economic Damages [ORS 31.710(1)] as a Matter of Law. Oregon law provides: “in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed $500,000.” ORS 31.710(1). The statute applies to wrongful death actions brought in Oregon courts. See Hughes v. PeaceHealth, 344 Or. 142, 145, 178 P.3d 225 (2008). 1. Partial summary judgment may be granted where Oregon’s damages cap applies. Where ORS 31.710(1) applies to a claim on its face, courts in this District have found that it is appropriate to grant partial summary judgment in favor of the defendant on this issue. See Prasnikar v. Our Savior's Lutheran Church of Lake Oswego, 79 F. Supp. 3d 1184, 1190 (D. Or. 2015) (granting motion for summary judgment, finding the plaintiff’s “noneconomic damages should be capped at $500,000”); see also Teem v. Doubravsky, Case No. 3:15-cv-00210-ST, 2015 U.S. Dist. LEXIS 182346 at *11 (D. Or. Aug. 14, 2015), adopted by Teem v. Doubravsky, 2015 U.S. Dist. LEXIS 182293 (D. Or. Oct. 1, 2015) (granting partial summary judgment, finding “plaintiff’s request for noneconomic damages is capped by ORS 31.710(1) at $500,000”). Here, Plaintiff has alleged that he is entitled to recover noneconomic damages in the amount of $12,000,000 (FAC, at ¶¶ 29, 31). This is $11,500,000 in excess of Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 11 of 29 7 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT Oregon’s $500,000 statutory cap on noneconomic damages. Therefore, on its face, ORS 31.710(1) requires that Plaintiff’s request for noneconomic damages be reduced to and capped at $500,000, and the Court should enter partial summary judgment in favor of Defendant on this issue. 2. Oregon law applies under conflict-of-law principles. “When sitting in diversity, [federal courts] apply the choice-of-law rules of the forum state.” Coneff v. AT&T Corp., 673 F.3d 1155, 1161 (9th Cir. 2012). While Plaintiff has asserted that the law of the state of the injury or accident site governs, Oregon courts have rejected a mechanical application of this rule. See Casey v. Manson Constr. & Engineering Co., 247 Or. 274, 276-77, 428 P.2d 898 (1967). As the Oregon Supreme Court wrote in Casey 50 years ago, “[t]his court has heretofore been committed to the traditional choice-of-law rule that in tort cases the law of the place of wrong -- lex loci delicti -- governs …. [However,] lex loci delicti is no longer to be regarded as an article of faith in tort cases.” Id. Until Oregon enacted a choice of law statute, it applied the law of the state which had “the most significant relationship” to the parties and the action. Myers v. Cessna Aircraft Corp., 275 Or. 501, 514-15, 553 P.2d 355 (1976). Under this test, “the Court determines whether both states have substantial interests in having their laws applied.” Powell v. Sys. Transp., 83 F. Supp. 3d 1016, 1022 (D. Or. 2015). If "both states have substantial interests, the Oregon Supreme Court has adopted the 'most significant relationship' approach of the Restatement (Second) Conflict of Laws." Id. Under the “most significant relationship” approach, factors for the courts to consider include: the needs of the interstate and international systems; the relevant Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 12 of 29 8 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT policies of the forum and other interested states; the relative interests of those states in the particular issue; the protection of justified expectations; the basic policies underlying the particular field of law; certainty, predictability and uniformity of result; and ease in the determination and application of the law to be applied. See Portland Trailer & Equip., Inc. v. A-1 Freeman Moving & Storage, Inc., 182 Or. App. 347, 358, 49 P.3d 803 (2002). The contacts to be considered in applying these factors include the place where the injury occurred; the place where the conduct causing the injury occurred; the domicile, residence, nationality, place of incorporation and place of business of the parties; and the location of the parties’ relationship (if any). Id. In 2009, the Oregon Legislature adopted a statutory scheme to address choice of law analyses in tort cases: Senate Bill 561, codified at ORS 15.445, et seq. ORS 15.440 sets forth the general rules for choice of law analysis. ORS 15.440(3) applies where the injured person and the tortfeasor are domiciled in different states. ORS 15.440(3)(b) applies when the injurious conduct and resulting injury occurred in a state other than the state where either party were domiciled. In that case, the law of the state of conduct and injury governs. Here, the injury occurred in California. However, Defendant USF Reddaway conducts its corporate business in its resident state of Oregon. Thus, at least some of the relevant conduct occurred in Oregon and ORS 15.440(3)(b) should not apply. However, even if there is an argument that because the accident occurred in California this section should apply, the analysis does not end at this point. The Legislature included ORS 15.440(4): If a party demonstrates that application to a disputed issue of the law of a state other than the state designated by subsection (2) or Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 13 of 29 9 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT (3) of this section is substantially more appropriate under the principles of ORS 15.445, that issue is governed by the law of the other state. Thus, the Legislature specifically codified and allowed continued application of the common law “most significant relationship test”, discussed above. “The most appropriate law is determined by: (1) Identifying the states that have a relevant contact with the dispute, such as the place of the injurious conduct, the place of the resulting injury, the domicile, habitual residence or pertinent place of business of each person, or the place in which the relationship between the parties was centered; (2) Identifying the policies embodied in the laws of these states on the disputed issues; and (3) Evaluating the relative strength and pertinence of these policies with due regard to: (a) The policies of encouraging responsible conduct, deterring injurious conduct and providing adequate remedies for the conduct; and (b) The needs and policies of the interstate and international systems, including the policy of minimizing adverse effects on strongly held policies of other states.” ORS 15.445. In this case it is appropriate to apply the test under ORS 15.445(4) and Oregon’s statutory cap on non-economic damages should be applied as it is “substantially more appropriate” to the facts of this case. This case was filed in an Oregon court by a Washington resident against an Oregon Defendant. California has no substantial interest in having its law applied to the issue of out-of-state parties’ rights and obligations with respect to damages. Pre-statute cases held that the place of the accident should not be determinative. In Myers v. Cessna Aircraft Corp., 275 Or. 501, 553 P.2d 355 (1976), the Oregon Supreme Court applied Oregon law and declined to apply the law of the foreign state where the accident occurred. The personal injury action was venued in Oregon between Oregon Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 14 of 29 10 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT and Washington residents, for an accident that occurred in British Columbia. The Myers Court found the case “closely parallel to De Foor v. Lematta,” 249 Or. 116, 121- 22, 437 P.2d 107 (1968). Where the parties reside in a foreign state, the state where an accident occurs has little, if any, interest in how damages are assessed. In De Foor the Oregon Supreme Court declined to apply the law of California, where the accident occurred. The court noted that the defendant, a domiciliary of Oregon, may reasonably expect the law of its domicile, and where the lawsuit was filed, to be applied. Id. at 121-22. When a foreign state’s only involvement in a dispute is that it is the site of an accident, that state’s “abstract interest in highway safety is adequately protected by [applying the state’s] traffic laws….” See Tower v. Schwabe, 284 Or. 105, 109, 585 P.2d 662 (1978). Here, while the California Vehicle Code may prescribe the standard of care for vehicles on California roads, California law does not establish the damages available to Plaintiff, a Washington resident, in this case filed in Oregon against an Oregon Defendant. The Myers court noted that “[u]nder the circumstances of this case, the interests of the state of Oregon in providing for recovery against its citizens of damages for the wrongful death of its citizens are fully served by applying Oregon wrongful death law, and no significant interest of the state of California is in any way offended.” Myers, 275 Or. at 516. Here, Plaintiff is a resident of Washington and Defendant is a resident of Oregon. As in Myers, California has no significant interest that would be offended by applying Oregon’s statutory noneconomic damages cap. Oregon has a substantial interest in applying an important substantive law to its citizen who is sued in its courts. Indeed, the noneconomic damages statutory cap was Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 15 of 29 11 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT enacted as part of the 1987 “Tort Reform Act.” Tenold v. Weyerhaeuser, 127 Or. App. 511, 519, 873 P.2d 413 (1994). “The legislature determined that the cap would put a lid on litigation costs, which in turn would help control rising insurance premium costs for Oregonians.” Greist v. Phillips, 322 Or. 281, 299 n.10, 906 P.2d 789 (1995). Oregon has a strong interest in protecting its citizens and businesses, including Defendant USF Reddaway, from potentially devastating jury verdicts awarded in wrongful death actions. See Downing v. Abercrombie & Fitch, 265 F.3d 994, 1006 (9th Cir. 2001). “[T]he interest of a state in a tort rule limiting damages for wrongful death is to protect defendants from excessive financial burdens or exaggerated claims. [A] state by enacting a limitation on damages is seeking to protect its residents from the imposition of these excessive financial burdens.” Id. The Joint Interim Task Force On Liability Insurance, Staff Measure Analysis (legislative history of the damage cap), states that the “problems addressed” by the legislation to place a statutory cap on noneconomic damages are “that huge awards for pain and suffering have caused the enormous rise in insurance premiums and made it difficult for companies to predict losses.” See Ex. G to Segal Decl., at p. 5. Oregon has a strong interest in protecting USF Reddaway’s expectations that it will be subject to Oregon law when it is sued in an Oregon court. See De Foor, 249 Or. at 121-22. As a general matter, “[w]hen a corporation is sued at its principal place of business one would ordinarily expect that state’s law to govern.” Tomlin v. Boeing Co., 650 F.2d 1065, 1072 (9th Cir. 1981). Plaintiff, who filed this action in Oregon, cannot complain that a district court in Oregon, in a diversity case with an Oregon Defendant, will apply Oregon law. Plaintiff Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 16 of 29 12 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT chose to file this action in Oregon. When the requisite factors are applied, it is most appropriate to apply Oregon’s $500,000 cap on noneconomic damages. See ORS 15.440(4) and 31.710(1). Therefore, the Court should grant partial summary judgment, and find that Plaintiff’s claims for noneconomic damages must be reduced to the extent Plaintiff demands a greater amount. B. There Is No Genuine Dispute of Material Fact Regarding Plaintiff’s Claim for Punitive Damages, Which Should Be Dismissed. The required standard is set forth in the text of ORS 31.730(1), which provides that “[p]unitive damages are not recoverable in a civil action unless it is proven by clear and convincing evidence that the party against whom punitive damages are sought has acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.” Id. Thus, Plaintiff must obtain one of two findings by clear and convincing evidence: 1) that the defendant “acted with malice,” that is, that the defendant performed “a wrongful act done intentionally”, Friendship Auto Sales, Inc. v. Bank of Willamette Valley, 300 Or. 522, 535 n.13, 716 P.2d 715 (1986) (emphasis added); or 2) that the defendant “has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.” ORS 31.730(1). Plaintiff’s First Amended Complaint alleges only negligence claims – Negligence and Negligence Per Se. There are no allegations of any intentional conduct by Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 17 of 29 13 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant USF Reddaway – or by its employee Mr. Truelove. There is no authority to allow punitive damages against an employer for the negligent acts of its employee. It is well established that negligent driving does not support a claim for punitive damages, and that additional aggravating factors are necessary before punitive damages may be imposed. See Zumwalt v. Lindland, 239 Or. 26, 37-38, 396 P.2d 205 (1964); see also Thomas v. Guerrero, 285 Or. 95, 97-98, 589 P.2d 1112 (1979) (trial court struck claim for punitive damages where “[t]he defendant, who was travelling at a high rate of speed, rear-ended plaintiff's vehicle”); cf. Canton v. Hauge, 72 Or. App. 548, 553, 696 P.2d 1126 (1985) (finding punitive damages may be imposed where the defendant was driving while intoxicated and at a speed of 90 miles per hour in a 35- mile-per-hour zone). At Paragraph 20 of the FAC, Plaintiff alleges that Defendant was negligent for failing to sufficiently train Truelove; hiring Truelove; failing to ensure Truelove drove in a reasonable manner; and failing to install an unidentified safety system. These are all allegations of negligence which cannot support a claim for punitive damages. Plaintiff’s conclusory allegation at Paragraph 32 that Defendant “represented a conscious disregard of the probability that its conduct would result in injury to others” is woefully inadequate to support the request for punitive damages. Further, as discussed below, this allegation has not been supported by any evidence produced by Plaintiff in this case. It is well-established that a finding of negligent retention of an employee is an insufficient basis for punitive damages. See Wilson v. Tobiassen, 97 Or. App 527, 532, 777 P.2d 1379 (1989) ("In Oregon, punitive damages cannot be awarded for ordinary Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 18 of 29 14 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT negligence"). In Wilson, the plaintiff sought punitive damages against the Boy Scouts of America for their negligent hiring, supervision and retention of a volunteer troop leader who sexually abused one of his troop members “at least fifteen times between 1981 and 1984, when he had supervisory responsibility over the scouts.” Id. at 529-31. The court’s rejection of punitive damages as a matter of law is directly on point: In this case, plaintiff proved no more than ordinary negligence so that, regardless of what duty [Boy Scouts of America] might have had to plaintiff, punitive damages would not be justified. Plaintiff s evidence showed that, in August, 1982, Bass [i.e., another complainant]. told Harris and Dempsey [i.e., the troop leader's supervisors] about an incident of abuse that happened ten years earlier and that Tobiassen 'had been molesting boys' and also that Emigh [i.e., another complainant] told them in November, 1982, that an incident of abuse had occurred at a cookout involving her son's troop. The evidence also showed that Harris and Dempsey told Emigh that they would take care of it and that she need not contact anyone else. Evidence shows that they chose not to investigate the information provided by Bass and Emigh. * * * * Defendants' actions alone only amount to simple negligence, which does not justify punitive damages under Oregon law. The trial court erred in submitting the issue to the jury.” Id. at 532-33. The case of Ibanez v. Bettazza, No. 3:11-cv-01518-SI, 2013 U.S. Dist. LEXIS 44531 (D. Or. Mar. 28, 2013) is also directly on point in the context of trucking accidents. In Ibanez, a FedEx driver was driving a semi-tractor and double trailers at night and on a highway covered with snow and ice, without chains on his tires. Id. at *9-10. Although the safest maximum speed was 20 miles per hour, the driver’s speed was approximately 50 miles per hour. Id. at *10. Moreover, the driver was aware that the brakes on his second trailer were sticking, but he continued to drive. Id. at *10. As the driver passed another Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 19 of 29 15 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT vehicle, the brakes stuck and the second trailer slid into the plaintiff’s vehicle. Id. at *3. The plaintiff filed suit against the driver and FedEx for compensatory damages and punitive damages. The Plaintiff alleged three claims for relief: 1) negligence against FedEx for failing to adequately train and supervise its driver; 2) failing to properly maintain its equipment; and 3) negligence per se against both defendants for violating state and federal regulations. Id. at *2. While the Court found there may be a genuine dispute regarding the driver’s exposure to punitive damages, the Court granted FedEx’s motion for partial summary judgment, finding there was insufficient evidence to support punitive damages under Oregon law. Id. at *12-13. “In cases involving large company defendants, such as FedEx, ‘punitive damages serve the function to deter enterprises from accepting the risks of harming other private or public interests by recklessly substandard methods of operation at the cost of paying economic compensation to those who come forward to claim it.’” Id. at *13 [citing Schmidt v. Pine Tree Land Dev. Co., 291 Or. 462, 466, 631 P.2d 1373 (1981)]. “To justify an award of punitive damages against a company, however, the company's ‘conduct must go beyond mere carelessness to a willful or reckless disregard of risk of harm to others of a magnitude evincing a high degree of social irresponsibility.’” Id. The driver had at least six prior accidents. Nonetheless, the court found that FedEx’s actions were not “egregious” because there was undisputed evidence that FedEx exercised at least some care in providing driver safety training and placing the driver on observation after the earlier accident. Id. at *5, 13-14. The fact that FedEx did not utilize additional available safety procedures did not rise to the level of the type of socially Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 20 of 29 16 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT irresponsible behavior that punitive damages are designed to deter. Id. at *15-16. “Although FedEx's training, supervision, and discipline may have been deficient, those deficiencies merely support the conclusion that FedEx acted negligently.” Id. at *16. Therefore, there was no genuine dispute of material fact, and FedEx was entitled to partial summary judgment on the plaintiff’s claim for punitive damages. As the Oregon Supreme Court stated in Chamberlain v. Jim Fisher Motors, Inc., 282 Or. 229, 578 P.2d 1225 (1978): In Harrell v. Travelers Indemnity Co., 279 Or 199, 208-212, 567 P2d 1013 (1977), decided after the trial of this case, this court discussed some of the problems resulting from the extension of liability for punitive damages to cases in which there was no wanton misconduct or intentional infliction of injury, but in which defendant's conduct was grossly negligent or reckless. For those reasons, as stated in Harrell, we hold that gross negligence or recklessness is not, in and of itself, sufficient to support an award of punitive damages. Id. at 237 (italics added). Here, Plaintiff has not provided any evidence to establish that Defendant may have engaged in anything more than simply negligent conduct. As set forth in the Declaration of Ruth Segal, in response to contention Interrogatories, Plaintiff failed to produce or provide any evidence that Defendant engaged in any conduct that would rise to the level required by these cases. Plaintiff offers only two pieces of evidence – the CHP report and the specifications for the truck. The CHP report shows only that Mr. Truelove was negligent for driving faster than a prudent person would under the circumstances – again, simple negligence. Plaintiff’s only other argument -- not evidence -- is that Defendant should have purchased some unspecified equipment that may have prevented this accident. No Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 21 of 29 17 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT evidence is provided that such equipment even exists. Further, no evidence is provided that such equipment is required under any law or any industry standard, and thus that the absence of this equipment is negligent, much less wanton or reckless. The evidence is this case demonstrates that, at most, Truelove negligently caused a motor-vehicle accident. As was the case in Ibanez, USF Reddaway’s conduct does not “go beyond mere carelessness to a willful or reckless disregard of risk of harm to others of a magnitude evincing a high degree of social irresponsibility.’” Schmidt v. Pine Tree Land Dev. Co., 291 Or. 462, 466, 631 P.2d 1373 (1981). Therefore, there is insufficient evidence to support a claim for punitive damages, and Plaintiff’s claim for such damages should be dismissed. C. Plaintiff’s Marijuana Business Is Prohibited under Federal Law, and Plaintiff Is Barred from Recovering Damages Arising from a Criminal Enterprise. In his First Amended Complaint, Plaintiff seeks economic damages of $4,675,000 for pecuniary losses suffered by Connor Tarr’s heirs, including “future contribution from the decedent.” FAC, at ¶ 30. In response to an interrogatory seeking the basis for Plaintiff’s claim for these economic damages, Plaintiff states: Connor Tarr had helped establish a lucrative, wholesale cannabis growing company with his mother, and was to be charged with operating and overseeing that business’ day-to- day operations. As a result of Connor Tarr’s untimely death, his mother was deprived of that significant economic benefit.” See Plaintiff’s Response to Defendant’s First Set of Interrogatories, Interrogatory No.11, Ex. F to Segal Decl. Plaintiff’s claim for economic damages is based solely on a cannabis growing business – an enterprise that is illegal under federal law. Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 22 of 29 18 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT Much like the prohibition of alcohol during the 1920s, marijuana is prohibited under federal law, and business transactions in federally prohibited substances are void and contrary to public policy as a matter of law. See Druggan v. Anderson, 269 U.S. 36, 39 (1925) (“we apprehend that there would be little difficulty in holding void a contract made in July, 1919, and contemplating performance in disregard of the prohibition [of alcohol] in July, 1920”). The fact that some states have declined to enforce federal law does not change the result -- the U.S. Supreme Court has held that federal law is the supreme law of the land in this area, which the courts must follow. Specifically, the Court in Gonzales v. Raich, 545 U.S. 1 (2005), outlined the regulatory framework prohibiting marijuana. “In enacting the CSA [Comprehensive Drug Abuse Prevention and Control Act], Congress classified marijuana as a Schedule I drug.” Id., at 14 [citing 21 U.S.C. § 812(c)]. “By classifying marijuana as a Schedule I drug, … the manufacture, distribution, or possession of marijuana became a criminal offense….” Id. “The CSA provides for the periodic updating of schedules and delegates authority to the Attorney General, after consultation with the Secretary of Health and Human Services, to add, remove, or transfer substances to, from, or between schedules. [Citation.] Despite considerable efforts to reschedule marijuana, it remains a Schedule I drug.” Id., at 14- 15. In Gonzales, both plaintiffs, through licensed physicians under California’s Compassionate Use Act, obtained and used medical marijuana for undisputed medical conditions. Id. at 12. County and federal officials conducted a raid on plaintiffs’ homes. The local officials determined plaintiffs were in full compliance with the state law. However, federal agents pursued criminal charges. Id. at 13. The district court refused to Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 23 of 29 19 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT grant an injunction prohibiting the federal officials from prosecuting plaintiffs. The Ninth Circuit reversed the trial court. Id. at 14. The Supreme Court in Gonzales unequivocally held that federal laws prohibiting marijuana preempt and control over any state laws that may allow for use of marijuana. “When Congress decides that the ‘total incidence’ of a practice poses a threat to a national market, it may regulate the entire class.” Id., at 17. “It has long been settled that Congress’ power to regulate commerce includes the power to prohibit commerce in a particular commodity.” Id., at 19, n.29. Federal law prohibits all cultivation and sales of marijuana, and it makes no difference whether the marijuana is transported across state lines or limited exclusively within a single state. Gonzales, 545 U.S. at 22. “Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.” Id. at 22 (footnote omitted). The Gonzales Court specifically held that federal law preempts state laws allowing marijuana. “The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.” Id. at 29. “It is beyond peradventure that federal power over commerce is ‘superior to that of the States to provide for the welfare or necessities of their inhabitants,’ however legitimate or dire those necessities may be.” Id. “Just as state acquiescence to federal regulation cannot expand Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 24 of 29 20 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT the bounds of the Commerce Clause [citation], so too state action cannot circumscribe Congress' plenary commerce power.” Id. The Supreme Court squarely rejected the idea that a state’s marijuana laws can call into question federal laws prohibiting marijuana. “The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more importantly, one that Congress could have rationally rejected.” Id. at 30. For instance, California’s relatively recent attempts to legalize marijuana “cannot retroactively divest Congress of its authority of the Commerce Clause,” which would “turn the Supremacy Clause on its head….” Id. at 29 n.38. Because marijuana remains illegal under federal law, the marijuana operations from which Plaintiff claims lost revenue remains an illegal criminal enterprise in the eyes of the law. Under well-settled law, Plaintiff cannot rely upon an illegal activity to recover damages in court. A party cannot “set up a case in which he must necessarily disclose an illegal purpose as the groundwork of his claim. The rule is expressed in the maxims, ex dolo malo non oritur actio, and in pari delicto potior est conditio defendentis.” C.D. Johnson Lumber Co. v. Leonard, 192 Or. 639, 651, 236 P.2d 926 (1951). “He who comes here [to court] for relief must draw his justice from pure fountains.” Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 306 n.12 (1985). Under these principles, “[n]o court will lend its aid to a man who founds his cause of action upon an … illegal act. If from the plaintiffs’ own stating, or otherwise, the cause of action appear to arise ex turpi causa, or the transgression of a positive law of this Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 25 of 29 21 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT country, there the court says he has no right to be assisted. [The courts] will not lend their aid to such a plaintiff.” Higgins v. McCrea, 116 U.S. 671, 686 (1886). Not surprisingly, there are few cases in which a plaintiff has voluntarily come forward in federal court, admitted participation in a criminal enterprise prohibited by federal law, and sought federal assistance in that enterprise through money damages. However, courts in similar scenarios have denied relief without the need for extensive discussion. For instance, Courts have applied the foregoing principles in cases involving illegal alcohol during federal prohibition, and marijuana cases are no different – regardless of what state law may hold. In Rutkin v. Reinfeld, 229 F.2d 248, 255-56 (2d Cir. 1956), the Court of Appeals barred a claim for damages arising from a bootlegging operation. “[A]ny rights which [plaintiff] may have in the … transaction are derived through a bootlegging partnership which was itself illegal. This partnership carried on its liquor business in the United States, and was therefore clearly governed by the prohibition laws of the United States. A member of such an illegal partnership is not entitled to enforcement of any right depending on the partnership agreement.” Id. at 256. Courts in other areas of the law have also disallowed recovery based upon marijuana use and operations prohibited by federal law. For instance, the use of federally-prohibited marijuana cannot form the basis of a state-law claim for disability discrimination. See Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920, 926, 70 Cal. Rptr. 3d 382 (Cal. 2008) (“No state law could completely legalize marijuana … because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a))”); Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Or. 159, 178, 230 P.3d 518 (2010) Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 26 of 29 22 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT (“To the extent that [state law] affirmatively authorizes the use of medical marijuana, federal law preempts that subsection, leaving it ‘without effect’”); Roe v. TeleTech Customer Care Mgmt. (Colo.) LLC, 171 Wash.2d 736, 759, 257 P.3d 586 (Wash. 2011) (“Washington patients have no legal right to use marijuana under federal law.”). Courts have also refused to grant bankruptcy relief to marijuana businesses that are legal under state law, but prohibited by federal law. See, e.g., Arenas v. United States Trustee (In re Arenas), 535 B.R. 845, 854 (Bankr. 10th Cir. 2015) (dismissing marijuana business’s bankruptcy case). “Possessing, growing, and dispensing marijuana and assisting others to do that are federal offenses. But like several other states, Colorado has legalized these acts and heavily regulates them, triggering a flourishing marijuana industry there. Can a debtor in the marijuana business obtain relief in the federal bankruptcy court? No.” Id., at 847. “[T]he debtors are unfortunately caught between pursuing a business that the people of Colorado have declared to be legal and beneficial, but which the laws of the United States — laws that every United States Judge swears to uphold — proscribe and subject to criminal sanction.” Id., at 854.2 Because the marijuana enterprise which is the basis for Plaintiff’s claim is prohibited by federal law, Plaintiff is barred from seeking damages in this Court arising from such criminal activities. Much like bootleggers during the Prohibition Era, Plaintiff is not allowed to recover any income attributable to criminal activities -- no matter how widespread the crimes are, and regardless of whether the activities are also criminal under state law. 2 Likewise, the Ninth Circuit has held that marijuana businesses in compliance with state law, but in violation of federal law, cannot claim business expenses as deductions for income tax purposes. See Olive v. Comm'r, 792 F.3d 1146, 1150 (9th Cir. 2015). Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 27 of 29 23 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT V. CONCLUSION For the foregoing reasons, Defendant USF Reddaway Inc. respectfully requests that this Court GRANT this motion for partial summary judgment, and find that (1) Oregon’s cap on noneconomic applies in this action, (2) there is no genuine dispute of material fact that plaintiff cannot sustain a claim for punitive damages, and (3) Plaintiff’s claim for lost income based on a marijuana business is barred by federal law prohibiting the sale of marijuana. DATED this 10th day of July, 2017. By: /s/ Michael J. Estok_____________ MICHAEL J. ESTOK RUTH SEGAL RUBEN ESCOBEDO III On behalf of Defendant USF REDDAWAY INC. Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 28 of 29 24 - DEFENDANT USF REDDAWAY INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT CERTIFICATE OF COMPLIANCE This brief complies with the applicable word-count limitation under LR 7-2(b) because it contains 6,650 words, including headings, footnotes and quotations, but excluding the caption, table of contents, table of cases and authorities, signature block, exhibits, and any certificates of counsel. DATED this 10th day of July, 2017. By: /s/ Michael J. Estok_____________ MICHAEL J. ESTOK RUTH SEGAL RUBEN ESCOBEDO III On behalf of Defendant USF Reddaway Inc. Case 3:15-cv-02243-PK Document 53 Filed 07/10/17 Page 29 of 29