DEFENDANT’S REPLY IN SUPPORT OF MOTION FOR

RE-ENTRY OF PARTIAL SUMMARY JUDGMENT IN

DEFENDANT’S FAVOR AND FOR JUDGMENT

DISMISSING PLAINTIFF’S COUNT THREE - Page 1

Doc No. 1386683

KEATING JONES HUGHES P.C.

200 SW Market St., Suite 900

Portland, Oregon 97201-5730

(503) 222-9955

Peter Eidenberg, OSB #075778

peidenberg@keatingjones.com

Kelly F. Huedepohl, OSB #133896

khuedepohl@keatingjones.com

Keating Jones Hughes PC

200 SW Market St., Suite 900

Portland, OR 97201-5730

Phone: (503) 222-9955

Fax: (503) 796-0699

Of Attorneys for Patenaude & Felix, A.P.C.

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

BRIAN CARLOS, on behalf of himself and

all other similarly situated,

Plaintiff,

v.

PATENAUDE & FELIX, A.P.C.,

Defendants.

Case No. 3:14-cv-00921-MO

DEFENDANT’S REPLY IN SUPPORT

OF MOTION FOR RE-ENTRY OF

PARTIAL SUMMARY JUDGMENT IN

DEFENDANT’S FAVOR AND FOR

JUDGMENT DISMISSING

PLAINTIFF’S COUNT THREE

By Patenaude & Felix, A.P.C.

Defendant filed a motion asking the Court to reenter summary judgment in defendant’s

favor on plaintiff’s quantum meruit claim. Dckt. No. 122. Defendant’s motion was filed on

June 11, 2015, the parties fully briefed the issues, and summary judgment was granted by the

Court in defendant’s favor on September 14, 2015. Dckt. Nos. 31, 48, 52, 56, and 61.

Plaintiff’s response appears to be directed to the merits of the original summary judgment

motion defendant filed in 2015, rather than to defendant’s present motion to reenter the Court’s

prior order and judgment. See Dckt. Nos. 31, 124. The response does not present a request to

reopen briefing or provide any legal authority or analysis explaining why the Court should

Case 3:14-cv-00921-MO Document 126 Filed 06/25/19 Page 1 of 5
DEFENDANT’S REPLY IN SUPPORT OF MOTION FOR

RE-ENTRY OF PARTIAL SUMMARY JUDGMENT IN

DEFENDANT’S FAVOR AND FOR JUDGMENT

DISMISSING PLAINTIFF’S COUNT THREE - Page 2

Doc No. 1386683

KEATING JONES HUGHES P.C.

200 SW Market St., Suite 900

Portland, Oregon 97201-5730

(503) 222-9955

reopen a question it resolved almost four years ago. See generally Dckt. No. 124.

The law-of-the-case doctrine limits the circumstances under which a prior disposition of a

claim or issue should be reconsidered. See Milgard Tempering, Inc. v. Selas Corp. of Am., 902

F.2d 703, 715 (9th Cir. 1990) (where an issue has been “decided explicitly or by necessary

implication in [a] previous disposition,” under the law-of-the-case doctrine “a court is generally

precluded from reconsidering an issue previously decided by the same court, or a higher court in

the identical case.”) (Internal citation omitted.)

“While courts have some discretion not to apply the doctrine of law of the case,

that discretion is limited. Depending on the nature of the case or issue and on the

level or levels of the courts or courts [sic] involved, a court may have discretion to

reopen a previously resolved question under one or more of the following

circumstances:

(1) the first decision was clearly erroneous;

(2) an intervening change in the law has occurred;

(3) the evidence on remand is substantially different;

(4) other changed circumstances exist; [or]

(5) a manifest injustice would otherwise result.

Thomas v. Bible, 983 F.2d 152, 155 (9th Cir. 1993) (internal citation omitted) (holding the

district court abused discretion when it failed to apply the law-of-the-case doctrine to give effect

to an issue implicitly decided by the Ninth Circuit on appeal).

Although adherence to the law of the case is “not an inexorable command,” when

directed to a court’s own prior interlocutory order, City of Los Angeles, Harbor Div. v. Santa

Monica Baykeeper, 254 F.3d 882, 889 (9th Cir. 2001), plaintiff offers no reason the Court should

reopen briefing or reconsider a matter that was previously reduced to judgment in this action. See

Dckt. No. 124. Plaintiff does not argue the Court’s 2015 ruling was clearly erroneous, and he

does not identify any intervening change in the applicable law or discovery of new facts

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DEFENDANT’S REPLY IN SUPPORT OF MOTION FOR

RE-ENTRY OF PARTIAL SUMMARY JUDGMENT IN

DEFENDANT’S FAVOR AND FOR JUDGMENT

DISMISSING PLAINTIFF’S COUNT THREE - Page 3

Doc No. 1386683

KEATING JONES HUGHES P.C.

200 SW Market St., Suite 900

Portland, Oregon 97201-5730

(503) 222-9955

affecting the quantum meruit claim in the time since the original briefing was completed. See

generally Dckt. No. 124.

Defendant respectfully requests that the Court decline plaintiff’s unstated invitation to

reopen briefing and reconsider the Court’s previous judgment on Count Three of the Complaint.

Count Three was not affected by the Ninth Circuit’s Opinion on appeal, See Dckt. No. 90-1, and

this Court rendered its decision on the claim in defendant’s favor. Dckt Nos. 56 and 61.

To the extent the Court may revisit the merits of defendant’s 2015 motion for partial

summary judgment on Count Three of the Complaint, defendant incorporates by reference its

original briefing on the motion. See Dckt. Nos. 31, 52. Defendant further replies that plaintiff’s

response brief does not cite to any case or statute, from any jurisdiction, holding that pleading

quantum meruit as an alternative to a breach of contract claim is improper. See generally Dckt.

No. 34. To the contrary, the alternative pleading is expected in Oregon. Mount Hood Cmty. Coll.

ex rel. K & H Drywall, Inc. v. Fed. Ins. Co., 199 Or. App. 146, 158, 111 P.3d 752, 758-59

(2005).

Finally, on January 1, 2002, Oregon Revised Statute 81.130 (renumbered 15.360 in 2011)

took effect and supplanted the common-law choice-of-law rules for breach-of-contract actions

that plaintiff cites in his response at pages 11 and 12. See Herron v. Wells Fargo Fin., Inc., No.

05-CV-659-ST, 2006 WL 2422831, at *10 (D. Or. Aug. 16, 2006). Plaintiff does not analyze the

quantum meruit claim under those statutes, which the Oregon Court of Appeals recently held

apply to at least some implied contracts. See Or. Rev. Stat. §§ 15.300 et seq. Portfolio Recovery

Assocs., LLC v. Sanders, 292 Or. App. 463, 471, 425 P.3d 455, 461 (2018), review allowed, 364

Or. 680 (2019), and review allowed, 364 Or. 680, 439 P.3d 985 (2019). Plaintiff also does not

analyze the choice-of-law rules that govern noncontractual claims. See Or. Rev. Stat. § 15.440

Case 3:14-cv-00921-MO Document 126 Filed 06/25/19 Page 3 of 5
DEFENDANT’S REPLY IN SUPPORT OF MOTION FOR

RE-ENTRY OF PARTIAL SUMMARY JUDGMENT IN

DEFENDANT’S FAVOR AND FOR JUDGMENT

DISMISSING PLAINTIFF’S COUNT THREE - Page 4

Doc No. 1386683

KEATING JONES HUGHES P.C.

200 SW Market St., Suite 900

Portland, Oregon 97201-5730

(503) 222-9955

(setting out the choice-of-law rules for noncontractual claims, including the general rule that, in

the absence of a demonstration that the law of a different state is “substantially more

appropriate” under enumerated principles, the law of the state of conduct, not the state of injury,

applies). The common law cited by plaintiff has been supplanted by statute, and plaintiff

identifies no authority for the proposition that a quantum meruit claim against an Oregon

consumer based on the consumer’s alleged conduct in Oregon will be governed by Virginia law.

See Dckt. No. 124 at 11–12. Defendant asks the Court to reject plaintiff’s arguments and reenter

summary judgment in defendant’s favor on Count Three of the complaint.

Conclusion

There has been no change in law or facts that warrant reopening the Court’s prior

decision on Count Three of plaintiff’s Complaint. Defendant moves the Court to reenter

judgment on Count Three.

DATED this 25th day of June 2019.

KEATING JONES HUGHES, P.C.

s/ Kelly F. Huedepohl

Peter Eidenberg, OSB #075778

peidenberg@keatingjones.com

Kelly F. Huedepohl, OSB No. 133896

503-222-9955

Attorneys for Patenaude & Felix, A.P.C.

Case 3:14-cv-00921-MO Document 126 Filed 06/25/19 Page 4 of 5
CERTIFICATE OF SERVICE - Page 5

Doc No. 1386683

KEATING JONES HUGHES P.C.

200 SW Market St., Suite 900

Portland, Oregon 97201-5730

 (503) 222-9955

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing DEFENDANT’S REPLY IN SUPPORT OF

MOTION FOR RE-ENTRY OF PARTIAL SUMMARY JUDGMENT IN DEFENDANT’S

FAVOR AND FOR JUDGMENT DISMISSING PLAINTIFF’S COUNT THREE on the

following:

Bret A. Knewtson

Law Office of Bret Knewtson

3000 NE Stucki Avenue, Suite 230-M

Hillsboro, OR 97124

Phone: (503) 846-1160

Fax: (503) 922-3181

Email: bknewtson@yahoo.com

Of Attorneys for Plaintiff

Mark G. Passannante

Broer & Passannante PS

1001 SW Fifth Avenue, Suite 1220

Portland, OR 97204

Phone: (503) 294-0910

Fax: (503) 243-2717

Email: broerandpassannante@gmail.com

Of Attorneys for Plaintiff

by electronically mailed notice from the court to above said attorneys on said day.

DATED this 25th day of June 2019.

KEATING JONES HUGHES, P.C.

s/ Kelly F. Huedepohl

Peter Eidenberg, OSB #075778

peidenberg@keatingjones.com

Kelly F. Huedepohl, OSB No. 133896

khuedepohl@keatingjones.com, FAX 503-796-0699

Of Attorneys for Patenaude & Felix, A.P.C.

Trial Attorney: Peter Eidenberg, OSB No. 075778

Case 3:14-cv-00921-MO Document 126 Filed 06/25/19 Page 5 of 5