Michael W. Mosman

In Gerke v. Travelers Casualty Insurance Co. of America, the plaintiff sued his insurer for coverage after a loss, but Travelers moved for summary judgment on the ground that Gerke had failed to submit to an examination under oath (EUO) and had filed suit in violation of the policy’s “Legal Action Against Us” clause. The district court adopted the magistrate judge’s recommendation and granted the motion, dismissing the action without prejudice. The court held that the EUO requirement and related suit-limitation provisions are conditions precedent to filing suit; because Gerke had not substantially complied, his lawsuit was premature. The ruling rested on the plain language of the policy rather than any determination that coverage was forfeited, so dismissal without prejudice merely suspended the action until Gerke satisfied the contractual prerequisites.

business & regulatoryprocedure

The case involves homeowners Jon and Shelley Beyer who sued to block foreclosure on their Oregon home, claiming defects in the chain of title including failure to present the promissory note, separation of the note from the trust deed, improper designation of MERS as beneficiary, and fraudulent notarization of transfer documents. The court denied the Beyers' motion for a temporary restraining order and granted the defendants' motion to dismiss for failure to state a claim. It reasoned that the Oregon Trust Deed Act does not require presentment of the note or proof of standing beyond the deed of trust itself, that separation of the note and deed does not void the security interest, that MERS was validly named as beneficiary consistent with the parties' intent and state law, and that the notarization allegations did not establish fraud. The opinion relies on Oregon statutes, prior case law such as Stewart and United States National Bank of Portland v. Holton, and the terms of the recorded trust deed.

propertyprocedure

In this employment dispute, plaintiff Benz sued his former employer, West Linn Paper Company, alleging violations of the Family and Medical Leave Act and Oregon disability discrimination statutes arising from job reassignments and his eventual termination after he underwent surgeries for throat polyps and requested voice rest. The district court adopted the magistrate judge's findings and recommendation and granted the defendant's motion for summary judgment. The court held that Benz's FMLA claim failed because he presented no evidence of economic damages, which are required for recovery under the statute. On the state-law claims, the court concluded that Benz's throat condition did not qualify as a disability, there was no causal link between his impairment and the adverse actions, and the employer lacked notice of any need for accommodation.

labor & employmentcivil rights

In Moon v. Thomas, an inmate at FCI Sheridan filed a habeas petition under 28 U.S.C. § 2241 challenging Bureau of Prisons regulations that categorically barred inmates with current felony convictions involving firearms or certain prior convictions from early release eligibility after completing the Residential Drug Abuse Treatment Program (RDAP). The court upheld the validity of 28 C.F.R. §§ 550.55(b)(5) and 550.55(b)(4) (2009) under the APA's arbitrary and capricious standard, citing Supreme Court and Ninth Circuit precedents such as Lopez v. Davis that recognized the BOP's discretion to exclude those with firearm-related offenses. However, the court found that internal Program Statement P5162.05 was unlawful to the extent it treated a felon-in-possession conviction under 18 U.S.C. § 922(g) as a disqualifying crime of violence. Because the petitioner's ineligibility determination remained valid even without applying the unlawful portion of the program statement, the court granted the motion to dismiss and denied the petition.

criminal lawgunsfederal power

In Peck v. Thomas, a federal inmate challenged Bureau of Prisons regulations at 28 C.F.R. § 550.55(b)(5)(ii) (2009) that categorically bar prisoners with felony convictions involving firearms from receiving early-release credit after completing the Residential Drug Abuse Treatment Program, seeking relief under 28 U.S.C. § 2241 and the Administrative Procedure Act. The court upheld the 2009 regulations as valid under the APA, consistent with Supreme Court precedent in Lopez v. Davis and Ninth Circuit authority recognizing the BOP's discretion to exclude such offenders from the non-violent-offense early-release incentive. Although an internal program statement categorizing felon-in-possession convictions as crimes of violence was found unlawful under circuit law, the inmate's disqualification rested independently on the valid regulation itself, so the court granted the motion to dismiss and denied the habeas petition.

criminal lawgunsfederal powerprocedure

This case involves multiple plaintiffs, including the City and Port of Portland, seeking contribution and recovery of costs for environmental cleanup of the Portland Harbor Superfund site under CERCLA and the Oregon Superfund Act from defendants such as Anderson Roofing and General Steamship. The district court adopted the magistrate judge's findings and recommendations in full. It denied Anderson Roofing's motion to dismiss the Seventh and Eighth Claims for Relief under ORS section 465.325(6)(c)(B) on statute of limitations grounds, finding the claims timely based on a single 2006 occurrence, while deferring ruling on the Fifth and Sixth Claims; it also denied General Steamship's motion to dismiss. The court reasoned that a ruling on the deferred claims would not meaningfully alter the case and that arguments limiting damages to post-accrual periods did not apply because the claims arose from one event rather than continuing violations.

environmentprocedure

The case involves plaintiff Jane Doe 130 suing the Archdiocese of Portland, the Archbishop, and Father J.V.H. for sexual battery of a child and intentional infliction of emotional distress under a respondeat superior theory, plus direct claims for negligence and misrepresentation, arising from alleged abuse connected to the priest's employment. The district court adopted the magistrate judge's findings and recommendations in full after no objections were filed. It denied the plaintiff's motion to compel document production, dismissed the misrepresentation claim without prejudice, denied the defendants' motion to dismiss except as moot on the misrepresentation claim, and granted in part and denied in part the motion for judicial notice. The decisions rested on application of Federal Rules of Civil Procedure 12(b)(6) and 26, along with standards for judicial notice under Federal Rule of Evidence 201, without requiring de novo review due to the absence of objections.

torts & liabilityprocedure

This case involved minors who were strip searched without individualized suspicion upon admission to the Yamhill County Juvenile Detention Center and after contact visits with non-staff professionals, such as attorneys. The plaintiffs sued under 42 U.S.C. § 1983, claiming the detention center's blanket strip search policy violated their Fourth Amendment rights. The court held that both the admission searches and post-contact-visit searches were unconstitutional because they were highly intrusive and the government's interests did not outweigh the privacy invasion, particularly given the excessive scope of the admission policy. However, the court granted qualified immunity to the individual defendants because the relevant rights were not clearly established at the time. The court also addressed standing for injunctive relief in line with the magistrate judge's findings.

criminal lawcivil rights

This case involves a contract dispute over the renewal of a sublease for approximately 94 acres of land in Oregon. Plaintiff LNG Development Co. exercised its contractual option under a 2004 Sublease Agreement with the Port of Astoria to extend the term for thirty years, but the Port refused to take steps to renew its own Master Lease with the Oregon Department of State Lands, which was a prerequisite for the extension. The court granted the plaintiff's motion for partial summary judgment, holding that the Port breached the Sublease by failing to provide the thirty-year extension. The core reasoning was that the Sublease's plain language created an obligation for the Port to fulfill the renewal terms, and alternative methods for compliance were available to the defendants; other objections regarding speculation or investigations did not alter the contractual duties.

business & regulatoryproperty

This case concerned whether a school district must reimburse parents under the Individuals with Disabilities Education Act (IDEA) for the costs of a private residential placement for a student with ADHD who had not previously received special education services. After the Supreme Court and Ninth Circuit held that the IDEA does not categorically bar reimbursement in such circumstances and remanded for equitable analysis, the district court reviewed the relevant factors on remand. The court found that the parents provided no timely notice of the placement, that the decision to send the student to Mt. Bachelor Academy was driven primarily by concerns over substance abuse and behavioral issues unrelated to his learning difficulties, and that the parents selected an unusually expensive option without involving the district. Weighing these equities, the court concluded that reimbursement was not warranted and reversed the hearing officer's contrary ruling.

civil rights

In this case, plaintiff Thunderbird Hotels, LLC sued the City of Portland and city official Mr. Adams over a development moratorium and related planning processes for the Hayden Island area and a potential I-5 bridge project, alleging violations of substantive due process, equal protection, and takings under federal and state law. The magistrate judge recommended granting defendants' motion for summary judgment, finding that claims against the City were not ripe for review and that Adams was entitled to absolute legislative immunity for his votes on the moratorium. The district court adopted the recommendation in full after de novo review of the objected-to portions, denying related discovery motions because additional evidence would not alter the ripeness outcome. The court therefore dismissed all claims against the City without prejudice and claims against Adams with prejudice.

propertyprocedurebusiness & regulatoryenvironment

In Walton v. Hill, a state prisoner filed a federal habeas corpus petition under 28 U.S.C. § 2254 challenging his 1987 conviction for aggravated murder and robbery arising from the shooting of a convenience store clerk during a theft. The magistrate judge recommended granting the petition in part on the claim that appellate counsel provided ineffective assistance by failing to notify the petitioner of the entry of the final amended judgment in time to file a direct appeal, while denying relief on all other claims as either procedurally defaulted or lacking merit under deferential review. The district judge conducted a de novo review of the objected-to portions of the findings and recommendation and adopted them in full, ordering a conditional writ that requires the state to allow the petitioner to pursue a direct appeal within 120 days or face release from custody.

criminal lawprocedure

This case involves a developmentally disabled minor student suing the North Clackamas School District and school officials after alleged sexual assaults by another disabled student, claiming inadequate measures were taken to prevent further incidents following a prior reported event. The plaintiff asserted a Title IX claim against the district and three individuals, a section 1983 claim against the district and two officials, and a negligence claim not at issue in the motion. The court adopted the magistrate judge's recommendations after de novo review of objections, granting summary judgment to the individual defendants on the Title IX claim, denying it as to the district on Title IX, and granting summary judgment to all defendants on the section 1983 claims. The core reasoning centered on the lack of evidence supporting liability for the individuals and the constitutional claims, while finding factual questions remained regarding the district's Title IX obligations.

civil rightsprocedure

This case involves a challenge by the Northwest Environmental Defense Center to the City of Lake Oswego's plan to replace a barge dock on the Willamette River, approved by the National Marine Fisheries Service and the U.S. Army Corps of Engineers. The plaintiff alleged violations of the Endangered Species Act, Rivers and Harbors Act, and National Environmental Policy Act in the agencies' review and permitting process for impacts on protected salmonids and their critical habitat. The court denied the plaintiff's motion for summary judgment and granted the agencies' cross-motion, finding that NMFS and the Corps properly conducted consultations, issued a biological opinion concluding no jeopardy to listed species, prepared environmental assessments with findings of no significant impact, and issued the necessary permits. The decision rested on the agencies' adherence to statutory requirements through reinitiated consultations, public notice, and analysis of project effects using the SLOPES III programmatic opinion and site-specific reviews.

environment

This case involved plaintiff Julie Toth, a former Pfizer employee, who sued under ERISA § 502(a)(1)(B) to challenge the termination of her long-term disability benefits by defendants INA Life Insurance Company of New York and the Pfizer Long Term Disability Plan. The benefits, provided due to conditions including chronic fatigue syndrome following a 1997 accident, had been approved after an earlier court order but were later terminated. The district court adopted the magistrate judge's findings and recommendation, granting the plaintiff's motion for summary judgment and denying the defendants' cross-motion. The decision required restoration of benefits, payment of past-due amounts with interest, and award of reasonable attorney fees, based on a de novo review concluding that the plaintiff remained continuously disabled and unable to perform her occupation under the plan terms.

labor & employmenthealthcare

This case involved an appeal from a magistrate judge's order requiring that subscribers receive notice under Federal Rule of Criminal Procedure 41(f)(1)(C) when the government obtains a search warrant for email contents from an Internet service provider under 18 U.S.C. § 2703(a) of the Stored Communications Act. The district court reversed, holding that § 2703(a) incorporates Rule 41's procedures but that notice to the subscriber is not required because serving the warrant on the third-party ISP satisfies the provision, and no notice obligation arises when no property is actually seized from the target. The court reasoned that email stored with an ISP is held by a third party, so traditional physical-world notice rules do not apply in the same way, and the statute's language and structure support this interpretation without triggering subscriber notice in such cases.

criminal lawprocedure

In Sommers ex rel. FLIR Systems, Inc. v. Lewis, a shareholder brought a derivative suit on behalf of FLIR against its current and former directors, officers, and option recipients, alleging illegal backdating of stock options from 1996 to 2006 that generated unlawful profits, overstated earnings, and caused the company millions in costs from an SEC investigation and financial restatements. The complaint asserted fourteen claims, including violations of federal and Oregon securities laws plus state claims for unjust enrichment, breach of fiduciary duty, and waste. The court granted the current board's motion to dismiss with prejudice on grounds that the plaintiff failed to adequately plead demand futility under the Rales standard, as a prior shareholder demand had been made and investigated without resulting litigation, rendering the other defendants' motions moot. Certain claims such as waste and breach of the duty of loyalty were addressed separately but did not alter the overall dismissal of the action against the board.

business & regulatoryprocedure

Bark, an environmental nonprofit, sued the Bureau of Land Management to block the Annie’s Cabin Timber Sale, a commercial thinning project covering 566 acres in Oregon’s Upper Molalla River watershed. The plaintiff argued that the agency’s Environmental Assessment violated NEPA by inadequately analyzing cumulative impacts on water quality, wildlife habitat, and other resources, failed to disclose effects on Riparian Reserves, and breached FLPMA by not complying with the Aquatic Conservation Strategy. The court reviewed the record under the Administrative Procedure Act and concluded that the EA satisfied NEPA’s requirements for cumulative-impact analysis and disclosure of riparian effects while also meeting FLPMA’s consistency obligations. Accordingly, the court granted the BLM’s cross-motion for summary judgment and denied Bark’s motion, allowing the timber sale to proceed.

environmentfederal powerprocedure

In this habeas corpus case under 28 U.S.C. § 2241, the petitioner challenged the execution of his federal sentence after government delays prevented timely imprisonment following his appeal. The court granted the petition and ordered credit for 512 days erroneously spent at liberty. The core reasoning applied the doctrine of credit for time at liberty from Ninth Circuit precedent, finding that the delay resulted from simple negligence by the U.S. Marshals Service and Bureau of Prisons with no fault by the petitioner, making the time an exception to the usual requirement of official detention under 18 U.S.C. § 3585(b).

criminal lawprocedure

In Powell's Books, Inc. v. Myers, bookstores, literary organizations, health nonprofits, and an individual challenged two Oregon statutes—ORS § 167.054 (prohibiting furnishing sexually explicit material to children under 13) and ORS § 167.057 (prohibiting luring a minor under 18 with descriptions of sexual conduct for arousal or inducement purposes)—arguing they violated the First and Fourteenth Amendments by criminalizing protected speech and were unconstitutionally vague under the Fifth and Fourteenth Amendments. The plaintiffs sought declaratory and injunctive relief, fearing prosecution for distributing books, educational materials, or media involving sexual content. The court denied the motion for a permanent injunction, holding that the statutes, as interpreted, were not substantially overbroad because they targeted only materials furnished with the intent to achieve deviant sexual goals or harm to minors rather than a substantial amount of protected expression, and that their language provided sufficient clarity to avoid vagueness concerns in their core applications.

criminal lawfree speech