Jeffrey Fehr v. John Kennedy , 387 F. App'x 789 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
JEFFREY FEHR and AUDREY FEHR, No. 09-35768
Plaintiffs - Appellants, D.C. No. 3:08-cv-01102-KI
v.
MEMORANDUM *
JOHN KENNEDY and BATEMAN
SEIDEL MINER BLOMGREN CHELLIS
& GRAM, P.C.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Submitted July 14, 2010**
Portland, Oregon
Before: PREGERSON, WARDLAW, and RAWLINSON, Circuit Judges.
Plaintiffs Jeffrey and Audrey Fehr ('Fehrs') filed this diversity action in
federal district court against defendant John Kennedy ('Kennedy') for legal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
malpractice. Kennedy represented the Fehrs at the mediation of ASH v. Fehr.
The Fehrs allege that they relied on Kennedy's advice to reject a settlement offer
made at the mediation and consequently received a less favorable disposition at
trial. The district court granted Kennedy's motion for summary judgment because
the Fehrs were unable to present any evidence of attorney malpractice without
disclosing confidential mediation communications. Confidential mediation
communications are inadmissible under Or. Rev. Stat. y 36.222(1), which
provides: '[M]ediation communications and mediation agreements that are
confidential . . . are not admissible as evidence in any subsequent adjudicatory
proceeding, and may not be disclosed by the parties or the mediator in any
subsequent adjudicatory proceeding.' The district court had jurisdiction under 28
U.S.C. y 1332 and we have jurisdiction under 28 U.S.C. y 1291. We affirm.
We review de novo a district court's decision granting summary judgment
and interpreting state law. Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d
365, 369 (9th Cir. 1998). Or. Rev. Stat. y 36.222(1) prohibits disclosure of
mediation communications in 'any subsequent adjudicatory proceeding.' The
parties dispute whether the term 'any subsequent adjudicatory proceeding' applies
to actions between a party to mediation and his or her attorney. We hold that it
does.
2
The text and context of y 36.222(1) demonstrate that the Oregon legislature
intended the term 'any subsequent adjudicatory proceeding' to be read broadly.
The word 'any' is broad and inclusive, suggesting that y 36.222's nondisclosure
requirement applies to the present legal malpractice action. See Wiederhorn v.
Multnomah Athletic Club, 170 P.3d 1, 3 (Or. App. 2007) (pointing out that all
definitions of the word 'any' 'incorporate an element of inclusiveness').
Moreover, even though the Oregon legislature provided a number of
exceptions to the nondisclosure requirement, it did not provide an exception for
actions between a party to a mediation and his or her attorney. Two of these
exceptions would be superfluous if we interpreted 'any subsequent adjudicatory
proceeding' to be limited to actions involving the same issues and parties as those
involved in the underlying mediation. See Or. Rev. Stat. y 36.222(5) (exception
permitting disclosure of confidential mediation communications in actions between
a party to a mediation and a mediator or mediation program); y 36.222(6)
(exception permitting disclosure of confidential mediation communications that
directly relate to child or elder abuse under certain circumstances). Therefore, the
Oregon legislature clearly did not intend the term 'subsequent adjudicatory
proceedings' to be limited to proceedings that raise the same issues and involve the
same parties as the mediation. See Larsen v. Bd. of Parole and Post-Prison
3
Supervision, 138 P.3d 16, 19 (Or. App. 2006) ('As a general rule, we assume that
the legislature did not intend any portion of its enactments to be meaningless
surplusage.').
The Fehrs' action against Kennedy for legal malpractice is a 'subsequent
adjudicatory proceeding' within the meaning of the statute. Accordingly, the
Fehrs may not introduce any confidential mediation communications to prove their
legal malpractice claim. Or. Rev. Stat. y 36.222(6). Without admitting confidential
mediation communications, the record is devoid of any evidence of legal
malpractice. Therefore, the Fehrs have failed to raise a genuine issue of material
fact, and the district court was justified in granting summary judgment in favor of
Kennedy.
AFFIRMED.
4
FILED
JUL 16 2010
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
I concur in the result.