FILED

NOT FOR PUBLICATION

AUG 2 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAX ZWEIZIG, No. 18-36060

Plaintiff-Appellant, D.C. No. 3:15-cv-02401-HZ

v.

MEMORANDUM*

TIMOTHY C. ROTE; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, Chief District Judge, Presiding

Argued and Submitted March 3, 2020 Withdrawn from Submission June 16, 2020 Resubmitted August 2, 2021 Portland, Oregon

Before: WOLLMAN,** FERNANDEZ, and PAEZ, Circuit Judges.

Max Zweizig filed suit against Northwest Direct Teleservices, Inc., its

successors, and Timothy C. Rote in federal district court, alleging claims of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Roger L. Wollman, United States Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation. retaliation and aiding-and-abetting retaliation in violation of Oregon Revised

Statutes § 659A.030(1)(f) and (g). A jury found that Zweizig had suffered $1

million in noneconomic damages. The district court applied the $500,000

noneconomic damages cap set forth in Oregon Revised Statutes § 31.710(1) and

entered judgment against the defendants “jointly and severally in the amount of

five hundred thousand dollars ($500,000.00).”

Zweizig appealed, arguing that the district court erred in applying the

damages cap. We certified the damages question to the Oregon Supreme Court,

see Zweizig v. Rote, 962 F.3d 484 (9th Cir. 2020), in answer to which it

concluded, “The damages cap in ORS 31.710(1) does not apply to an award of

noneconomic damages for an unlawful employment practice claim under ORS

659A.030 in which the plaintiff does not seek damages that arise out of bodily

injury and instead seeks damages for emotional injury,” Zweizig v. Rote, 368 Or.

79, 81 (2021) (en banc). We thus reverse and remand the case to the district court

for further proceedings consistent with the Oregon Supreme Court’s decision.

REVERSED AND REMANDED.

2 18-36060