Kramer v. Southern Oregon University et al

Filing 148

OPINION AND ORDER: Denying Motion for Extension of Time 138 . Denying Plaintiff's Motion for Reconsideration 130 . This case is STAYED pending resolution of Defendant's interlocutory appeal, Ninth Circuit Case No. 14-36103. Upon receiving notice of the resolution of Defendants' appeal, this Court shall set a scheduling conference in this case. Signed on 3/13/2015 by Judge Owen M. Panner. (jkm) Modified on 3/13/2015 (jkm). To reflect opinion.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
RONALD H. KRAMER,
Plaintiff,

v.

No. 1:13-cv-00340-PA
OPINION & ORDER

SOUTHERN OREGON UNIVERSITY, a
public university; OREGON
UNIVERSITY SYSTEM; a public
university system, MARY CULLINAN;
GEORGE PERNSTEINER,
Defendants.

PANNER, District Judge:
This matter comes before the Court on Plaintiff's Motion for
Reconsideration (#130) and Defendants' Amended Motion for
Extension of Time to File Dispositive Motions (#138).
Motions are DENIED.
1 - ORDER

Both

Background

On December 1, 2014, I issued an Order (#129) granting
Defendants' Motion for Partial Summary Judgment in part.

The

background facts of this case have been fully set forth in my
previous Order (#129) and will not be reproduced here.

Defendants

promptly filed a notice of interlocutory appeal of that Order
(#132).

That appeal remains pending before the Ninth Circuit.

Before issuing my December 1, 2014 Order, I struck the trial date
and all associated dates and deadlines

(#128).

No new trial date

has been set.
Legal Standards

I. Motion for Reconsideration
A party may seek reconsideration of a ruling under Rules
59(e) or 60(b) of the Federal Rules of Civil Procedure.

Rule

59(e) "permits a district court to reconsider and amend a previous
order." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890
(9th Cir. 2000).

This rule, however, "offers an extraordinary

remedy, to be used sparingly in the interests of finality and
conservation of judicial resources."

Id.

"Under Rule 59(e), a

motion for reconsideration should not be granted, absent highly
unusual circumstances, unless the district court is presented with
newly discovered evidence, committed clear error, or if there is
an intervening change in the controlling law."

389 Orange St.

Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citation
omitted).

2 - ORDER

"Rule 60(b) provides for extraordinary relief and may be
invoked only upon a showing of exceptional circumstances."
Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044
1992) (citation and quotation marks omitted).

(9th Cir.

Under Rule 60, a

court may grant reconsideration based on: 1) mistake,
inadvertence, surprise, or excusable neglect; 2) newly discovered
evidence which by due diligence could not have been discovered
before the court's decision; 3) fraud by the adverse party; 4) the
judgment is void; 5) the judgment has been satisfied; or 6) any
other ieason justifying relief.

Fed. R. Civ. P. 60(b).

II. Motion for Extension of Time
District courts enjoy "broad discretion in supervising the
pretrial phase of litigation."
F.3d 1080, 1087
omitted).

Zivkovi v. S. Cal. Edison Co., 302

(9th Cir. 2002) (citation and quotation marks

A scheduling order "may be modified only for good cause

and with the judge's consent."

Fed. R. Civ. P. 16(b) (4).

Discussion

I. Motion for Reconsideration
Defendants in this case moved for summary judgment on
Plaintiff's blacklisting claim, arguing that blacklisting did not
exist as a cause of action in Oregon.
rejected that argument (##25,
rulings in my December 1,

201~

This Court had previously

42) and I stood by those prior
Order.

Nevertheless, I granted

summary judgment on the blacklisting claim on factual grounds,
ruling that there was no evidence in the record that Defendants

3 - ORDER

acted with malicious intent to injure Plaintiff.

Plaintiff

contends that this was an improper grant of sua sponte summary
judgment and clear error.
Courts may grant summary judgment sua sponte if the party
against whom judgment is entered "had a full and fair opportunity
to develop and present facts and legal arguments in support of its
position."

Portsmouth Square Inc. v. S'holders Protective Comm.,

770 F.2d 866, 869 (9th Cir. 1985).

"A litigant is entitled to

reasonable notice that the sufficiency of his or her claim will be
at issue."

Id.; see also Osborne v. Cnty of Riverside, 323 F.

App'x 613, 614

(9th Cir. 2009).

Notice need not be explicit,

although explicit notice is preferred.
869.

Portsmouth, 770 F.2d at

Rather, reasonable notice "implies adequate time to develop

the facts on which the litigant will depend to oppose summary
judgment."

Id.

I am not convinced that granting summary judgment on the
blacklisting claim was clear error.

The blacklisting claim was

the subject of numerous motions throughout this case and the
parties presented oral argument on closely related issues.

It is

not necessary to resolve this issue on that basis, however, as
Plaintiff had the opportunity to develop facts and present
arguments on the blacklisting claim while briefing the motion for
reconsideration.

The parties were also afforded the opportunity

to present oral argument.
Turning then to the blacklisting claim itself, ORS 659.805

4 - ORDER

prohibits the "blacklisting" of terminated employees.

The Oregon

Supreme Court held that "'if one is prevented by the wrongful act
of a third party from securing some employment he has sought, he
suffers a legal wrong, provided he can show that the failure to
employ him was the direct and natural consequence of the wrongful
act.'"

Johnson v. Or. Stevedoring Co., 128 Or. 121, 135

(1928) (quoting Thomas M. Cooley, A Treatise on the Law of Torts
328 (2nd ed. 1907)).

In order to prevail on a claim for

blacklisting, a plaintiff must submit evidence of a wrongful act
and a malicious intent.

Mink v. Marion Cnty. Juvenile Dep't, No.

08-6298-AA, 2009 WL 5173513, at *12-13 (D. Or. Dec. 18, 2009).
In this case, as discussed in my previous Order, the dispute
between SOU and JPRF was resolved through mediation when the
parties entered into a binding settlement agreement ("the Hammer
Agreement").

One of the terms of the Hammer Agreement was that

"Ron Kramer may serve as a volunteer consultant or independent
contractor consultant to [JPRF] or its affiliates but is not
eligible to be an officer, director, advisory board member, or
employee of [JPRF] or its affiliates."

The record indicates that

this provision was proposed during mediation by the SOU
representatives and that the JPRF representatives did not object
to it.

Moore Decl. Ex. 1, at 3; Thompson Decl. Ex. 3, at 6-7.

Plaintiff's Amended Complaint alleged that the Hammer Agreement
"made him unemployable in the southern Oregon media market as an
Executive Director for a public radio organization for the

5 - ORDER

remainder of his work life." 1 Am. Compl. at 11.
I granted summary judgment on this claim because, as in Mink,
there was no evidence that Defendants acted maliciously in
adopting the Hammer Agreement.

Malice is defined under Oregon law

as "the intentional doing of [an]
justification or excuse.

injurious act without

A tort committed with a bad motive or so

recklessly as to be in disregard of social obligations, or an act
wantonly, maliciously or wickedly done."
Or. 484, 505-06 (1951) (citations omitted).

Linkhart v. Savely, 190
Malice requires that

the plaintiff establish "conduct more severe than mere
negligence."

Williamson v. Munson Paving, LLC, No. 09-CV-736-AC,

2010 WL 4340473, at *3

(D. Or. Oct. 22, 2010).

In this case, SOU President Mary Cullinan did not personally
participate in the Hammer mediation.
Thompson Decl. Ex. 2, at 3.

Moore Decl. Ex. 2, at 2;

Cullinan testified at deposition she

did not request that the provision concerning Plaintiff's
employment be included in the Hammer Agreement, nor did she know
who requested it.

Thompson Decl. Ex. 2, at 4.

Cullinan endorsed

the Hammer Agreement on behalf of SOU to "[support] what came out
of the mediation agreement."

Id.; Moore Decl. Ex. 2, at 3.

She

testified that she did not consider what effect the Hammer
Agreement would have on Plaintiff's reputation when she endorsed
the Agreement.

1

Thompson Decl. Ex.2, at 5; Moore Decl. Ex. 2, at

As noted in my previous Order, JPR and JPRF are the only
public radio entities in southern Oregon.
6 - ORDER

7-8.
Plaintiff has produced no evidence that Defendants acted with
a bad motive or so recklessly as to be in disregard of social
obligations~

Instead,

Plaintiff contends that Cullinan's

endorsement of the Hammer Agreement without knowing its origins or
considering its effect on Plaintiff was an act taken "without
justification or excuse" and that it therefore constitutes a
malicious act . . Plaintiff relies on an overly selective reading of
Cullinan's deposition testimony, however.

Cullinan testified that

she endorsed the Hammer Agreement in order to end the SOU-JPRF
crisis:
[PLAINTIFF's COUNSEL]: You think it was dignified to
have it publically disclosed that [Plaintiff] is not
eligible to be on the foundation board or be an employee
of the foundation for which he had worked as executive
director for so many years?
[CULLINAN]: It's not really a question of [Plaintiff's]
dignity at this point.
It was a question of resolving
the altercations that had gone forward and have a
resolution that people could agree to.

I conclude that this is insufficient evidence to create a
triable question of fact on Plaintiff's claim for blacklisting.
My previous ruling was not in error.

Plaintiff's motion is

DENIED.

II. Motion for Extension of Time
Defendants move the Court to re-open the dispositive motion
deadlines in order to permit them to file a motion for summary
judgment on Plaintiff's claim for tortious interference with

7 - .ORDER

economic relations.

Defendants' previous counsel made the

decision not to move for summary judgment on the tortious
interference claim when they moved against Plaintiff's other
claims.

Other than the due process claim presently on appeal,

tortious interference is the only claim remaining in the case.
I conclude that neither the pending appeal, nor Defendants'
new litigation strategy constitute "good cause" for amending the
scheduling-order in this case.

Defendants' motion is DENIED.

III. Stay

Courts have the inherent power to stay proceedings.
Landis v. N. Am. Co., 299 U.S. 248, 254

(1936).

See

"A trial court

may, with propriety, find it is efficient for its own docket and
the fairest course for the parties to enter a stay of an action
before it, pending resolution of independent proceedings which
bear upon the case. This rule applies whether the separate
proceedings are judicial, administrative, or arbitral in
character, and does not require that the issues in such
proceedings are necessarily controlling of the action before the
court."
863-64

Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857,
(9th Cir. 1979).

When determining whether a stay is

warranted, the court must balance the hardships to the parties.
See Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d
1059, 1066 (9th Cir. 2007).
In this case, discovery is closed and dispositive motions
have been resolved.

8 - ORDER

Both parties have indicated that they do not

wish to proceed to trial on Plaintiff's tortious interference
claim until the pending appeal has been resolved.

The parties'

position is sensible in terms of efficiency and conservation of
judicial resources.

Accordingly, I STAY this case pending

resolution of Defendants' appeal, Case Number 14-36103.

Once the

Court has received notice that the appeal has been resolved,

I

will set new trial and pretrial dates.
Conclusion

Plaintiff's Motion for Reconsideration (#130) is DENIED.
Defendants' Amended Motion for Extension of Time to File
Dispositive Motions (#138) is DENIED.

This case is STAYED pending

resolution of Defendant's interlocutory appeal, Ninth Circuit Case
No. 14-36103.

Upon receiving notice of the resolution of

Defendants' appeal, this Court shall set a scheduling conference
in this case.
IT IS SO ORDERED.
DATED this

/ J day

of March, 2015.

t?~tt~
OWEN M. PANNER
U.S. DISTRICT JUDGE

9 - ORDER