School District No. 1J, Multnomah County v. ACandS, Inc.

These consolidated appeals arise from complaints filed by School District 1J, Mult-nomah County, Oregon (the “School District”). The School District sought to recover the cost of removing asbestos-containing products from over 100 school buildings. The defendants are installers and manufacturers of asbestos products. In a series of rulings in these cases, the district court granted summary judgment and partial summary judgment in favor of two installers and six manufacturers. It ordered final judgments entered as to those matters pursuant to Federal Rule of Civil Procedure 54(b). The School District appeals. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

STANDARD OF REVIEW

“A grant of summary judgment is reviewed de novo to determine, viewing the evidence in the light most favorable to the nonmoving party, whether there exist any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709 , 712 (9th Cir.1990).

INSTALLER DEFENDANTS

ACandS, Inc. and E.J. Bartells, Co., two of the installer defendants, installed asbestos-containing products in the School…

dissenting:

I dissent from the majority’s opinion both as to the contractors and the six “first round” manufacturers. Regarding the former, the majority misapplies Oregon law when it retroactively applies the statute of repose. Regarding the latter, the majority mistakenly concludes that the district court did not abuse its discretion when it ruled against the School District at summary judgment based on an unprecedented application of Rule 56(e).

I.

The majority concludes that the Oregon statute of repose applies retroactively to bar the School District’s claims against the contractors. Yet the rule applied in Oregon courts is that “in the absence of legislative *1266 direction to the contrary ... a statute that affects ‘legal rights and obligations arising out of past actions’ can only be applied prospectively.” Bergstad v. Thoren, 86 Or.App. 70 , 738 P.2d 223 (1987). The statute of repose at issue here does not provide for retroactive application. See Or.Rev.Stat. § 12.-135(1). Thus the correct answer plainly is that the statute does not apply retroactively.

The majority supports its opposite conclusion by citing cases in which Oregon courts have applied statutes of repose…