Nikolov

MEMORANDUM ***

Plaintiffs-Appellants Nikolay N. Nioklov, individually and as personal representative of the estate of Nicola Nikolov, and-Gabriela N. Vladimirova (“the Nikolovs”) appeal the district court’s award of summary judgment for Associated Environmental Services and two of its principals, Kevin M. Wilkerson and James Lacher (collectively “AES”). We affirm.

As our subject matter jurisdiction is based on diversity of citizenship, state substantive law controls. See Torre v. Brickey, 278 F.3d 917, 919 (9th Cir.2002). The district court’s ruling on a summary judgment motion is reviewed de novo. See Martinez v. Signature Seafoods, Inc., 303 F.3d 1132, 1134 (9th Cir.2002).

There was no written contract between Nicola and AES, the two having only reached a verbal agreement on the terms of the testing. Deciding what was agreed upon by parties to an oral contract is a question of fact.- See Howland v. Iron Fireman Mfg. Co., 188 Or. 230 , 213 P.2d 177, 199 (1949). The Nikolovs, as the proponents of the oral contract in this case, must establish the contract’s terms by a preponderance of the evidence. See Bernard v. Vatheuer, 303 Or. 410 , 737 P.2d 128, 131 (1987). As the…