United States v. 2020-06-16 | 18-36060 | MAX ZWEIZIG V. TIMOTHY ROTE | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAX ZWEIZIG,
Plaintiff-Appellant,
v.
TIMOTHY C. ROTE;
NORTHWEST DIRECT
TELESERVICES, INC.;
NORTHWEST DIRECT
MARKETING OF OREGON,
INC.; NORTHWEST DIRECT
MARKETING, INC.;
NORTHWEST DIRECT OF
IOWA, INC.; ROTE
ENTERPRISES, LLC; DOES, 1
THROUGH 5,
Defendants-Appellees.
No. 18-36060
D.C. No.
3:15-cv-02401-HZ
ORDER CERTIFYING
QUESTION TO
OREGON SUPREME
COURT
Filed June 16, 2020
Before: Roger L. Wollman,
*
Ferdinand F. Fernandez,
and Richard A. Paez, Circuit Judges.
Order
*
The Honorable Roger L. Wollman, United States Circuit Judge for
the U.S. Court of Appeals for the Eighth Circuit, sitting by designation.

ZWEIZIG V. ROTE2
SUMMARY
**
Certification to Oregon Supreme Court
The panel certified to the Oregon Supreme Court the
following question:
Does Oregon Revised Statutes § 31.710(1)
cap the noneconomic damages awarded on an
employment discrimination claim under
Oregon Revised Statutes § 659A.030?
COUNSEL
Timothy C. Rote, West Linn, Oregon, pro se Defendant-
Appellant.
Shenoa Payne, Shenoa Payne Attorney At Law PC, Portland,
Oregon; Joel Christiansen, Vogele and Christiansen,
Pendleton, Oregon; for Defendant-Appellee.
James S. Coon, Thomas Coon Newton & Frost, Portland,
Oregon, for Amicus Curiae Oregon Trial Lawyers
Association.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

ZWEIZIG V. ROTE3
ORDER
Pursuant to Oregon Revised Statutes § 28.200, we
respectfully certify the question set forth below to the Oregon
Supreme Court.
Max Zweizig filed suit against Northwest Direct
Teleservices, Inc. (NDT), its successors, and Timothy C. Rote
in federal district court. Zweizig alleged that the defendants
retaliated against him, in violation of Oregon Revised
Statutes § 659A.030(1)(f), and that Rote aided and abetted the
retaliation, in violation of Oregon Revised Statutes
§ 659A.030(1)(g). The corporate defendants defaulted. The
case proceeded to trial, which resulted in a verdict in favor of
Zweizig and an award of $1 million in noneconomic
damages. The district court applied the $500,000
noneconomic damages cap set forth in Oregon Revised
Statutes § 31.710(1). Judgment was entered against the
defendants.
Rote raised numerous arguments on appeal, which we
have addressed by memorandum disposition in appeal
number 18-35991. On cross-appeal, Zweizig argues that the
district court erred in applying the damages cap. Oregon
Revised Statutes § 31.710(1) states:
Except for claims subject to ORS 30.260 to
30.300 and ORS chapter 656, in any civil
action seeking damages arising out of bodily
injury, including emotional injury or distress,
death or property damage of any one person
including claims for loss of care, comfort,
companionship and society and loss of
consortium, the amount awarded for

ZWEIZIG V. ROTE4
noneconomic damages shall not exceed
$500,000.
Zweizig contends that he did not seek “damages arising out
of bodily injury” and that the statute’s damages cap thus does
not apply. It is undisputed that Zweizig suffered no physical
injury.
The following question is certified to the Oregon Supreme
Court:
Does Oregon Revised Statutes § 31.710(1)
cap the noneconomic damages awarded on an
employment discrimination claim under
Oregon Revised Statutes § 659A.030?
The certified question of law is determinative of the
damages issue now pending in this court. It appears that there
is no controlling precedent in the decisions of the Oregon
Supreme Court or the Oregon Court of Appeals. Certain
Oregon circuit courts disagree whether the cap applies in
employment discrimination actions like this one. Compare
Pierce v. Daimler Trucks N. Am., LLC, No. 15CV24701, at 4
(Or. Cir. Ct. July 19, 2017) (applying the noneconomic
damages cap to an employment discrimination claim under
Or. Rev. Stat. § 659A.030), with Loczi v. Daimler Trucks N.
Am. LLC, No. 14CV15265, at 3 (Or. Cir. Ct. Mar 4. 2017)
(concluding that the noneconomic damages cap does not
apply to employment discrimination claims), and McMillan
v. Li Ning Sports USA, Inc., No. 1107-08760, 2013 WL
9591371, at *3 (Or. Cir. Ct. Dec. 17, 2013) (same).
We thus respectfully ask the Oregon Supreme Court to
exercise its discretionary authority to accept and decide this

ZWEIZIG V. ROTE5
question. If the court decides that the question presented is
inappropriate for certification, or if it declines the
certification for any other reason, we request that it so state,
and we will resolve the question according to our best
understanding of Oregon law.
The Clerk of this court shall file a certified copy of this
order with the Oregon Supreme Court under Oregon Revised
Statutes § 28.215. This appeal is withdrawn from submission
and will be submitted following receipt of the Oregon
Supreme Court’s opinion on the certified question or
notification that it declines to answer the certified question.
The Clerk is directed to administratively close this docket
pending further order. The panel shall retain jurisdiction over
further proceedings in this court. The parties shall notify the
Clerk of this court within one week after the Oregon Supreme
Court accepts or rejects certification. In the event the Oregon
Supreme Court grants certification, the parties shall notify the
Clerk within one week after the court renders its opinion.
CERTIFICATION REQUESTED; SUBMISSION
VACATED.
/s/ Richard A. Paez
Richard A. Paez, Circuit Judge,
Presiding