Page 1 Joint Motion for Stay of Proceedings

 McCormick v. United States, Case No. 3:15-cv-1363-MO

TIMOTHY L. WILLIAMS, OSB No. 034940

tim@rdwyer.com

Dwyer Williams Potter Attorneys, LLP

1051 NW Bond Street, Suite 310

Bend, OR 97703

Phone: 541.617.0555

Fax: 541.617.0984

Attorneys for Plaintiff

BILLY J. WILLIAMS, OSB #901366

Acting United States Attorney

District of Oregon

JAMES E. COX, JR., OSB #085653

Assistant United States Attorney

jim.cox@usdoj.gov

SUSANNE LUSE, OSB # 142489

Assistant United States Attorney

susanne.luse@usdoj.gov

United States Attorney’s Office

District of Oregon

1000 SW Third Ave., Suite 600 

Portland, Oregon 97204-2902

Telephone: (503) 727-1026

Facsimile (503) 727-1117

Attorneys for Defendant

THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

BENJAMIN McCORMICK,

Plaintiff

v.

UNITED STATES OF AMERICA,

acting by and through the BUREAU 

OF LAND MANAGEMENT,

Defendant.

Case No.: 3:15-CV-01363-MO

JOINT MOTION FOR STAY OF 

PROCEEDINGS
Page 2 Joint Motion for Stay of Proceedings

 McCormick v. United States, Case No. 3:15-cv-1363-MO

Plaintiff and Defendant through counsel, submit the following joint 

motion for stay of proceedings.

This is an action under the Federal Tort Claims Act, 28 U.S.C. § 2671, et 

seq., based on injuries that Plaintiff Benjamin McCormick suffered in a diving 

accident at the Cove Palisades State Park on August 19, 2012. Plaintiff 

completed service of process on the United States on September 21, 2015, and 

the government’s response to the complaint is due to be filed on November 20, 

2015.

Plaintiff also has an action pending against the state of Oregon 

regarding the same accident (hereinafter, “the State Court Action”). On June 

9, 2015, the Jefferson County Circuit Court granted the state’s motion to 

dismiss the State Court Action based on the Oregon recreational immunity 

statute, O.R.S. § 105.672, et seq. (Exhibit 1.) Plaintiff has appealed the 

Circuit Court decision, and the opening brief in Plaintiff’s appeal is scheduled

to be filed in November 2015. See McCormick v. State of Oregon, Oregon 

Court of Appeals Case No. A159931.

The United States also intends to raise recreational immunity as a 

defense in this action. See 28 U.S.C. § 2674 (“The United States shall be 

liable . . . in the same manner and to the same extent as a private individual in 

like circumstances.”). The parties believe that the Oregon Court of Appeals’ 

decision in the State Court Action may result in controlling authority on one or 
Page 3 Joint Motion for Stay of Proceedings

 McCormick v. United States, Case No. 3:15-cv-1363-MO

more issues in this case. For that reason, the parties believe it would serve 

the interests of judicial economy to stay proceedings in this case until the 

Court of Appeals issues a decision in the State Court Action. The parties are 

unable to give a precise estimate when the Oregon Court of Appeals will issue 

a decision, but a decision is not likely to occur for at least six months or more. 

The parties are prepared to file periodic status reports with the Court 

regarding the status of the State Court Action.

Wherefore, for the foregoing reasons, the parties respectfully request 

that the Court stay proceedings in this action pending a decision by the 

Oregon Court of Appeals in the State Court Action.

Dated this 28th day of October 2015.

Respectfully Submitted, 

Dwyer Williams Potter Attorneys, 

LLP

/s/ Tim Williams 

TIM WILLIAMS, OSB #034940

 Attorneys for Plaintiff

BILLY J. WILLIAMS

Acting United States Attorney

District of Oregon

/s/ James E. Cox, Jr. 

JAMES E. COX, JR., OSB # 085653

Assistant United States Attorney

 Attorneys for Defendant