Page 1 - Defendants' Memorandum in Opposition to Plaintiffs' Motion for Court to Reconsider 

Its Order Dismissing Plaintiffs' Claim for Due Process and Qualified Immunity 

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Michelle Barton Smigel, P.C., OSB No. 045530 

michelle.smigel@millernash.com 

Michael Porter, P.C., OSB No. 003560 

mike.porter@millernash.com 

MILLER NASH GRAHAM & DUNN LLP 

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Attorneys for Defendants 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION 

BRANDON AUSTIN, 

Plaintiff, 

v. 

UNIVERSITY OF OREGON; SANDY 

WEINTRAUB; CHICORA MARTIN; 

ROBIN HOLMES; and MICHAEL R. 

GOTTFREDSON, all in their individual 

capacities only, 

Defendants. 

Case No.: 6:15-cv-02257-MC (Lead Case) 

Case No.: 6:16-cv-00647-MC (Member Case) 

DEFENDANTS' MEMORANDUM IN 

OPPOSITION TO PLAINTIFFS' MOTION 

FOR COURT TO RECONSIDER ITS 

ORDER DISMISSING PLAINTIFFS' 

CLAIM FOR DUE PROCESS AND 

QUALIFIED IMMUNITY 

REQUEST FOR ORAL ARGUMENT 

DOMINIC ARTIS and DAMYEAN 

DOTSON, 

Plaintiffs, 

v. 

UNIVERSITY OF OREGON; SANDY 

WEINTRAUB; CHICORA MARTIN; 

ROBIN HOLMES; and MICHAEL R. 

GOTTFREDSON, 

Defendants.

Case 6:16-cv-00647-MC Document 50 Filed 12/02/16 Page 1 of 11
 

Page 2 - Defendants' Memorandum in Opposition to Plaintiffs' Motion for Court to Reconsider 

Its Order Dismissing Plaintiffs' Claim for Due Process and Qualified Immunity 

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I. INTRODUCTION 

In its September 8, 2016, Opinion and Order, this court found that Sandy 

Weintraub, Chicora Martin, Robin Holmes, and Michael R. Gottfredson (collectively, the 

"Individual Defendants") were entitled to qualified immunity from plaintiffs' due process claims 

because plaintiffs did not have a clearly established constitutional interest in "their status as 

admitted university students in good standing, their ability to pursue public higher education and 

athletic participation, the economic benefit from an existing scholarship, a hypothetical future 

scholarship at another school, [or their] future potential NBA careers." (Order at 8-9.) Because 

plaintiffs cannot cure this deficiency by supplementing their pleadings, the court dismissed 

plaintiffs' due process claims without leave to amend. 

Plaintiffs' motion asks the court to reconsider its ruling by again arguing that 

Stretten v. Wadsworth Veterans Hosp., 537 F2d 361 (9th Cir 1976)—a case finding that a 

medical resident had a property interest in his four-year employment contract—somehow clearly 

established that plaintiffs had a property interest in the renewal of their one-year athletic 

scholarships and their undergraduate education at University of Oregon (the "University" and, 

together with the Individual Defendants, "Defendants"). Plaintiffs, however, misconstrue 

Stretton and fail to set forth any factual basis for the court to reconsider its ruling. 

Accordingly, the court should deny plaintiffs' motion for reconsideration. 

II. LEGAL STANDARDS 

A. Motion for Reconsideration Under Fed R Civ P 60(b). 

A motion requesting the district court to reconsider an order may be filed under 

Fed R Civ P 59(e) or Fed R Civ P 60(b). See United States v. Martin, 226 F3d 1042, 1048 (9th 

Cir 2000) (explaining that a party may seek reconsideration of an appealable order under Fed R 

Civ P 59 because "[a] 'judgment' is defined by Rule 54 of the Federal Rules of Civil Procedure as 

'any order from which an appeal lies.'"). Motions filed under Fed R Civ P 59(e) must be filed 

Case 6:16-cv-00647-MC Document 50 Filed 12/02/16 Page 2 of 11
 

Page 3 - Defendants' Memorandum in Opposition to Plaintiffs' Motion for Court to Reconsider 

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within 28 days of the entry of judgment, whereas motions filed under Fed R Civ P 60(b) may be 

filed within a reasonable time of the entry of judgment. Fed R Civ P 59(e); Fed R Civ P 60(c). 

Because plaintiffs did not file their motion within 28 days of the court's Opinion and Order, this 

memorandum analyzes plaintiffs' motion under Fed R Civ P 60(b) only. 

Among the permissible reasons for reconsideration of an order under Fed R 

Civ P 60(b), only subsection (6) could theoretically apply here. Under that subsection, a district 

court may relieve a party from an order for "any * * * reason that justifies relief." Fed R 

Civ P 60(b)(6). Although subsection (6) "vests power in courts adequate to enable them to 

vacate judgments whenever such action is appropriate to accomplish justice," Klapprott v. 

United States, 335 US 601, 615, 69 S Ct 384, 93 L Ed 266 (1949), the Ninth Circuit has 

approved of Fed R Civ P 60(b) motions only "sparingly[,] as an equitable remedy to prevent 

manifest injustice." United States v. Alpine Land & Reservoir Co., 984 F2d 1047, 1049 (9th Cir. 

1993). In fact, typically, "[t]he rule is to be utilized only where extraordinary circumstances 

prevented a party from taking timely action to prevent or correct an erroneous judgment." Id.; 

see also Fed R Civ P 54(a) (defining "judgment," as relevant, as "any order from which an 

appeal lies"). 

B. Dismissal Without Leave to Amend. 

When a district court grants a motion to dismiss, it need not grant leave to amend 

if it "determines that the pleading could not possibly be cured by the allegation of other facts." 

Doe v. United States, 58 F3d 494, 497 (9th Cir 1995) (internal quotation marks and citation 

omitted). Consequently, a court may properly deny leave to amend when it is apparent from the 

record, or when the court declares, that amending the complaint would be futile. Foman v. 

Davis, 371 US 178, 182, 83 S Ct 227, 9 L Ed 2d 222 (1962) ("Of course, the grant or denial of an 

opportunity to amend is within the discretion of the District Court * * *."). 

Case 6:16-cv-00647-MC Document 50 Filed 12/02/16 Page 3 of 11
 

Page 4 - Defendants' Memorandum in Opposition to Plaintiffs' Motion for Court to Reconsider 

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III. ARGUMENT 

Plaintiffs' motion does not set forth sufficient grounds for reconsideration under 

Fed R Civ P 60(b)(6), and as the court correctly ruled, it would be futile to allow plaintiffs to 

amend their complaint. Plaintiffs ask for reconsideration of the court's dismissal of their due 

process claims and its grant of qualified immunity to the Individual Defendants, but plaintiffs 

have not suffered a manifest injustice, nor are there extraordinary circumstances that warrant 

reconsideration of the court's ruling. To the contrary, plaintiffs had ample opportunity to oppose 

Defendants' motion to dismiss through extensive briefing, lengthy oral argument, and 

supplemental briefing after oral argument. Thus, there is no reasonable basis for granting 

plaintiffs' motion for reconsideration. 

Moreover, the court granted qualified immunity to the Individual Defendants 

because "no relevant precedent clearly establishes the proposed constitutional rights" asserted by 

plaintiffs. Order at 10; see also Ashcroft v. al-Kidd, 563 US 731, 735, 131 S Ct 2074, 179 L Ed 

2d 1149 (2011). And since no relevant precedent clearly establishes these proposed 

constitutional rights, plaintiffs would not be able to overcome the Individual Defendants' 

entitlement to qualified immunity even if the court allowed plaintiffs to amend their complaint. 

Finally, because the pleadings "could not possibly be cured by the allegation of other facts," Doe 

v. United States, 58 F3d at 497 (internal quotation marks and citation omitted), it was entirely 

appropriate—and certainly not a "manifest injustice"—for the court to dismiss plaintiffs' due 

process claims without leave to amend. Alpine Land & Reservoir Co., 984 F2d at 1049.1

 

 

1

 Plaintiffs' opinion that the court erred in its analysis of Stretten is not the sort of "extraordinary 

circumstance[]" that justifies reconsideration by the district court. Alpine Land & Reservoir Co., 

984 F2d at 1049. 

Case 6:16-cv-00647-MC Document 50 Filed 12/02/16 Page 4 of 11
 

Page 5 - Defendants' Memorandum in Opposition to Plaintiffs' Motion for Court to Reconsider 

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A. Stretten Does Not Clearly Establish a Constitutional Right to Athletic 

Scholarships or University Education. 

Plaintiffs ask the court to reconsider its analysis of Stretten and find that the 

property interest recognized in Stretten clearly establishes a property interest in plaintiffs' athletic 

scholarships and their undergraduate education. Plaintiffs, however, do not set forth any valid 

reasons for the court to reconsider its analysis of Stretten. Nevertheless, Stretten does not 

establish the proposed constitutional interests—and because no relevant precedent does, the 

Individual Defendants are entitled to qualified immunity. 

As this court has explained, public officials such as the Individual Defendants are 

entitled to qualified immunity unless they have violated a constitutional right that was "'clearly 

established' at the time of the challenged conduct." al-Kidd, 563 US at 735 (quoting Harlow v. 

Fitzgerald, 457 US 800, 818, 102 S Ct 2727, 73 L Ed 2d 396 (1982)). A right is clearly 

established only when "the contours of [that] right are sufficiently clear that every reasonable 

official would have understood that what he is doing violates that right." al-Kidd, 563 US at 741 

(internal punctuation and citation omitted). The proposed constitutional interest at issue is not 

clearly established if it is "cast at a high level of generality." Plumhoff v. Rickard, __ US __, 

134 S Ct 2012, 2023, 188 L Ed 2d 1056 (2014) (internal quotation marks and citation omitted); 

see also Hamby v. Hammond, 821 F3d 1085, 1090 (9th Cir 2016) ("our circuit has been 

repeatedly chastised for conducting the clearly established inquiry at too high a level of 

generality"); City & Cty. of San Francisco v. Sheehan, __ US __ , 135 S Ct 1765, 1775-76, 191 L 

Ed 2d 856 (2015) ("We have repeatedly told courts—and the Ninth Circuit in particular—not to 

define clearly established law at a high level of generality.") (emphasis added) (internal 

quotation marks and citation omitted). Rather, "existing precedent must have placed the * * * 

constitutional question beyond debate."2

 al-Kidd, 563 US at 741. 

 

2

 Because the qualified immunity analysis applies an objective standard, it does not matter 

whether the public official in question believed that his or her actions violated the Constitution. 

Case 6:16-cv-00647-MC Document 50 Filed 12/02/16 Page 5 of 11
 

Page 6 - Defendants' Memorandum in Opposition to Plaintiffs' Motion for Court to Reconsider 

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Despite plaintiffs' continued assertion to the contrary, Stretten does not clearly 

establish a constitutional interest in athletic scholarships or undergraduate education. Stretten

simply cannot establish such interests—much less clearly establish them—because it is not a 

case about college athletics or university education. Instead, it is a case about a medical resident 

whose four-year employment contract was terminated after one year. The Ninth Circuit ruled 

that the resident's employment contract conferred a property interest for the "specified four-year 

duration" of the contract, and consequently could not be terminated early without due process of 

law.3 Stretten, 537 F2d at 367. 

Because Stretten's property interest arose from his employment, the Ninth 

Circuit's ruling does not clearly establish a property interest in the renewal of an athletic 

scholarship (which is not a contract for employment) or in undergraduate education—and any 

proposed similarity to plaintiffs' claims is cast at too "high [a] level of generality" to overcome 

the Individual Defendants' entitlement to qualified immunity. Plumhoff, 134 S Ct at 2023 

(internal quotation marks and citations omitted); see also Hamby, 821 F3d at 1090. Moreover, 

plaintiffs cite no case law or statute—and none exist in our jurisdiction—that equates an athletic 

scholarship to an employment contract, or that holds that an athletic scholarship confers a 

constitutionally protected property interest. Nor do plaintiffs cite any relevant case law or statute 

 

Thus, it is irrelevant whether the Individual Defendants "were [allegedly] unaware of Stretten," 

as plaintiffs assert. (Motion at 8.) 

3

 In Stretten's case, his employment contract entitled him to "uninterrupted training" as a medical 

resident, which the court acknowledged was a private interest for purposes of its balancing-test 

analysis under Mathews v. Eldridge, 424 US 319, 96 S Ct 893, 47 L Ed 2d 18 (1976). Stretten, 

537 F2d at 368-69. The Ninth Circuit did not, however, find that Stretten's education itself was a 

constitutionally protected interest. See Ryan v. Harlan, No. CV-10-626-ST, 2011 WL 711110, 

at *7 (D Or Feb. 22, 2011) (explaining that "Stretten turned on property interests in employment 

and not on property interests in education") 

Case 6:16-cv-00647-MC Document 50 Filed 12/02/16 Page 6 of 11
 

Page 7 - Defendants' Memorandum in Opposition to Plaintiffs' Motion for Court to Reconsider 

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equating a medical residency to undergraduate education, or otherwise recognizing a property 

interest in undergraduate education.4

In a failed attempt to equate their athletic scholarships to Stretten's employment 

contract, plaintiffs erroneously assert that the terms of their scholarships established "a 

presumption of a continued contract until such time as the conditions for termination [were] 

met." (Motion at 5.) In purported support of this argument, plaintiffs point to a clause in their 

scholarships, which stated that the financial assistance "may be changed or terminated only in 

 

4

 Plaintiffs cite two cases, Blantz v. Cal. Dep't of Corr. & Rehab., 727 F3d 917 (9th Cir 2013), 

and Liu v. Portland State University, 281 Or App 294, 383 P3d 294 (2016), in purported support 

of their alleged constitutional interests. (Motion at 8-9.) Neither has any bearing on the 

Individual Defendants' entitlement to qualified immunity. Blantz addresses the question of when 

an independent contractor of the government—not a university student or student athlete—has a 

constitutionally protected interest in her employment. Moreover, Blantz acknowledges that "the 

liberty interests protected by the Fourteenth Amendment are implicated only when the 

government's stigmatizing statements effectively exclude the employee completely from her 

chosen profession." Blantz, 727 F3d at 925. Not only are plaintiffs not employees or 

independent contractors of the University, but they cannot in good faith plead that they have 

been completely excluded from playing college basketball—which is not a constitutionally 

protected interest, in any event. Blantz therefore does not clearly establish any constitutional 

rights asserted by plaintiffs. 

 And Liu is inapposite to the issue of qualified immunity because it postdates plaintiffs' 

hearing and thus did not establish any constitutional rights "at the time of the challenged 

conduct." al-Kidd, 563 US at 735. Moreover, this case is factually distinguishable from Liu

because plaintiffs were afforded robust procedures under the University's then-governing 

regulations that were not available to Liu under Portland State University's then-governing 

regulations. For example, the University's regulations did not prevent plaintiffs from seeking 

judicial review of their suspensions, whereas Liu was not allowed to seek judicial review of his 

expulsion under Portland State University's regulations. See Liu, 281 Or App at 307. Further, at 

his expulsion hearing, Liu "was not allowed to be represented by counsel, cross-examine 

witnesses, or issue subpoenas, and the testimony of witnesses was not taken by oath or 

affirmation." Id. (citations omitted). By comparison, plaintiffs were represented by counsel at 

their hearing, and had plaintiffs elected a panel hearing instead of an administrative conference, 

they would have been afforded the opportunity to cross-examine witnesses, OAR 571-021-

0210(3)(e) and (13)(b)(A), and "request the University General Counsel to issue * * * 

subpoena[s]." OAR 571-021-0210(8). Also, witnesses would have been "required to affirm that 

their testimony [was] truthful." OAR 571-021-0210(13)(a). Accordingly, Liu is both temporally 

and factually inapposite to plaintiffs' motion for reconsideration. 

Case 6:16-cv-00647-MC Document 50 Filed 12/02/16 Page 7 of 11
 

Page 8 - Defendants' Memorandum in Opposition to Plaintiffs' Motion for Court to Reconsider 

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accordance with the legislation of the NCAA." (Motion at 4.) But by its plain language of 

plaintiffs' scholarships, this clause applies to changes made to, or the termination of, plaintiffs' 

scholarships during the period of the award—not the nonrenewal of plaintiffs' scholarships after 

their expiration. See Yogman v. Parrott, 325 Or 358, 361, 937 P2d 1019 (1997) (To interpret a 

contractual provision, Oregon courts first "examine[] the text of the disputed provision, in the 

context of the document as a whole. If the provision is clear, the analysis ends."). Accordingly, 

this clause does not support plaintiffs' claim of a presumptive four-year contract. 

The deficiencies of plaintiffs' due process claims cannot be cured by amending 

the complaint. As this court correctly ruled, "there is no Supreme Court, Ninth Circuit, or 

Oregon District Court case that, at the time of the events giving rise to this case, clearly 

establishes the property rights Plaintiffs assert, nor is there any apposite statute establishing the 

same"—no additional factual allegations about plaintiffs' scholarships or their education status 

can change this. (Order at 9.) The court's dismissal of plaintiffs' due process claims without 

leave to amend was therefore proper, and plaintiffs' motion does not set forth sufficient reason 

for the court to reconsider its ruling.5

B. Moreover, Unlike Stretten's Medical Residency, Plaintiffs' Athletic 

Scholarships Were Not Terminated Early. 

There is no reason for the court to reconsider whether plaintiffs had a clearly 

established property interest in their scholarships or their education. Nevertheless, the facts 

alleged by plaintiffs demonstrate that their scholarships were not terminated early, and thus 

plaintiffs' claims are distinguishable from those in Stretten. As explained above, the Ninth 

 

5 Plaintiffs now also ask the court to consider four declarations attached to their motion "to 

determine what other facts [in addition to the police report] were readily available to the 

University" at plaintiffs' hearing. (Motion at 9.) But considering these declarations would be 

futile. The opinions contained in these declarations (including, no less, the opinions of plaintiffs' 

current and former attorneys concerning whether plaintiffs should have been suspended) do not 

clearly establish the proposed constitutional rights, and thus do not undermine the Individual 

Defendants' entitlement to qualified immunity. 

Case 6:16-cv-00647-MC Document 50 Filed 12/02/16 Page 8 of 11
 

Page 9 - Defendants' Memorandum in Opposition to Plaintiffs' Motion for Court to Reconsider 

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Circuit found that Stretten's employment contract guaranteed him a four-year medical residency. 

When the hospital instead ended Stretten's residency after just one year, it terminated his 

employment contract early, thus triggering Stretten's right to due process. 

In contrast, as this court is aware, plaintiffs' athletic scholarships provided tuition 

and other financial benefits for the 2013-2014 academic year (and less for Austin), but no 

further.6 The University guaranteed that plaintiffs' scholarships would "be considered for 

renewal during subsequent periods," but the period of plaintiffs' scholarships was one academic 

year, and renewal was not guaranteed. (See Motion at 4, 12 (emphasis added).) When plaintiffs' 

scholarships ended in June 2014, they were not renewed. Unlike in Stretten, the University 

simply let plaintiffs' scholarships expire—it did not terminate their contracts early. 

Plaintiffs' scholarships were not terminated, and plaintiffs cannot overcome this 

material factual distinction between their claims and those in Stretten. For this additional reason, 

it would be futile to allow plaintiffs to amend their pleadings. 

IV. CONCLUSION 

For the reasons set forth in this memorandum and in Defendants' motion to 

dismiss, the court should deny plaintiffs' motion for reconsideration. Plaintiffs' have not 

presented sufficient grounds for the court to reconsider its ruling under Fed R Civ P 60(b)(6), nor 

 

6

 Plaintiffs appear to assert that the value of their athletic scholarships is constitutionally 

significant. (See Motion at 7 ("What we do know * * * is that an award in the $40,000 range, 

combined with continuing education, is as significant a property interest as" in Stretten.).) But 

the dispositive constitutional questions are whether a contract confers a legitimate claim of 

entitlement to benefits and, if so, to what benefits the recipient is entitled. The value of 

plaintiffs' scholarships does not confer a legitimate claim of entitlement to the renewal of their 

scholarships, and thus is irrelevant to whether plaintiffs had a clearly established property 

interest. 

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can plaintiffs possibly show that their alleged constitutional rights were clearly established—

even if the court allows plaintiffs to amend their pleadings. 

 DATED this 2nd day of December, 2016. 

MILLER NASH GRAHAM & DUNN LLP 

s/Michelle Barton Smigel 

Michelle Barton Smigel, P.C., OSB No. 045530 

michelle.smigel@millernash.com 

Michael Porter, P.C., OSB No. 003560 

mike.porter@millernash.com 

Telephone: 503.224.5858 

Fax: 503.224.0155 

 Attorneys for Defendants

Case 6:16-cv-00647-MC Document 50 Filed 12/02/16 Page 10 of 11
 

Page 1 - Certificate of Service 

4835-5000-4029.2 

MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

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CERTIFICATE OF SERVICE 

I hereby certify that I served the foregoing defendants' memorandum in 

opposition to plaintiffs' motion for court to reconsider its order dismissing plaintiffs' claim for 

due process and qualified immunity on: 

Ms. Marianne Dugan 

259 East Fifth Avenue, Suite 200-D 

Eugene, Oregon 97401 

Telephone: 541.338.7072 

E-mail: mdugan@mdugan.com 

Attorney for Plaintiff Brandon Austin 

Mr. Alan C. Milstein 

Sherman Silverstein Kohl Rose & Podolsky 

308 Harper Drive, Suite 200 

Moorestown, New Jersey 08057 

Telephone: 856.662.0700 

E-mail: amilstein@shermansilverstein.com 

Attorney for Plaintiff Brandon Austin

Mr. Brian Michaels 

259 East Fifth Avenue, Suite 300-D 

Eugene, Oregon 97401 

Telephone: 541.687.0578 

E-mail: brian@brianmichaelslaw.com 

Attorney for Plaintiffs Dominic Artis and 

Damyean Dotson 

Mr. Alex Spiro 

Brafman & Associates 

767 Third Avenue 

New York, New York 10017 

Telephone: 212.750.7800 

E-mail: aspiro@braflaw.com 

Attorney for Plaintiffs Dominic Artis and 

Damyean Dotson

by the following indicated method or methods on the date set forth below: 

 CM/ECF system transmission. 

 E-mail. (Courtesy copy.) 

 Facsimile communication device.

 First-class mail, postage prepaid.

 Hand-delivery.

 Overnight courier, delivery prepaid.

 DATED this 2nd day of December, 2016. 

s/Michelle Barton Smigel 

Michelle Barton Smigel, OSB No. 045530 

Of Attorneys for Defendants 

Case 6:16-cv-00647-MC Document 50 Filed 12/02/16 Page 11 of 11