Meade

Opinion by Judge EZRA; Concurrence by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge WALLACE.

Factual Background

Plaintiffs William Meade, Leland S. Stewart, Doug Vierkant, and David Girard (“Plaintiffs”) and their spouses, Catherine A. Meade, Frankie Lee Stewart, Linda K. Vierkant, ■ and Elizabeth D. Girard (“Spouses”) appeal the district court’s summary judgment in favor of Cedarapids and related corporations (“Defendants”) in Plaintiffs’ diversity action. Plaintiffs allege fraudulent misrepresentation and intentional infliction of emotional distress, arising from the closure of the El-Jay Division of Cedarapids (“El-Jay”) in Eugene, Oregon.

The main factual dispute centers on when the decision to close El-Jay. was made. Plaintiffs assert that it was made in July of 1994, long before any of them even applied for a job. Defendants contend that a plan (rather than a decision) was made at that time, and that the plan was contingent upon a number of factors, including 1) approval of a capital expenditure of approximately $5,000,000 in order to expand the Cedar Rapids, Iowa facility, 2) approval by the Iowa Department of Economic Development of a $1,000,000 tax…

concurring:

I am pleased to join Judge Ezra’s opinion because it states the law of Oregon as I understand it. I write separately only to note that the majority and dissent part ways on a fundamental issue, namely our understanding of how spouses relate to one another in today’s world. There may have been a time in our history when important family decisions were made by the husband, with little or no input from the wife. If things were ever that way, they no longer are. A marriage is a partnership, and major decisions such as whether the family will pull up. roots and move to a different city are normally made by the partners jointly. Only a very foolish employer will try to persuade a prospective employee to relocate without addressing the concerns of the spouse. Cedar-apids’s own officers testified to this understanding. If the question were presented to the Oregon Supreme Court, I believe it would hold that an employer who makes false representations to a prospective employee who is married must expect that the employee will share the information with the spouse, who may rely on it in consenting to the move. Neither we nor the courts of Oregon need be reminded that our opinion…

concurring and dissenting:

Because this is entirely an issue of state law, the majority’s opinion is not controlling and Oregon courts need give it no deference at all. See, e.g., Wedgwood Homes, Inc. v. Lund, 58 Or.App. 240 , 648 P.2d 393, 396 (1982) (rejecting federal court’s interpretation of state statute), aff'd, 294 Or. 493 , 659 P.2d 377 (1983). Therefore, I would not publish this nonprecedential opinion.

I concur with the majority that summary judgment was proper as to plaintiffs’ emotional distress claims and that there are genuine issues of material fact with regard to the husband-plaintiffs’ misrepresentation claims. I do not agree, however, that summary judgment as to the spouse plaintiffs’ (Spouses) misrepresentation claims was improper.

Oregon law demands that the. Spouses produce evidence that Cedarapids made representations to their respective husbands “with the intention that [the representations] be communicated to and acted upon by [the Spouses], or under circumstances that entitled [the Spouses] to believe that [Cedarapids] had authorized [the husbands] to communicate the representation to [the Spouses].” Johnsen v. Mel-Ken Motors, Inc., 134 Or.App. 81 , 894…