Ivie v. Astrazeneca Pharm.

OPINION & ORDER

JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE

As “master of her complaint” a plaintiff inevitably makes strategic choices about what claims to bring against a defendant, and where to file her case. Here, plaintiff Suzanne Ivie chose to sue defendant Astrazeneca Pharmaceuticals, LP, in federal court in the District of Oregon, and chose to allege, inter alia, that Astrazeneca had violated Oregon's Whistleblower Protection Law, ORS § 659A.199(1). After a six-day trial, the jury ruled for the plaintiff on her state law whistleblower claim and awarded significant damages. Astrazeneca then renewed its motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), arguing that plaintiff failed to present the jury with the threshold, necessary factual connections with Oregon for the whistleblower protection law to apply to this case or these parties. That motion is now before the Court. For the following reasons the Court finds plaintiff failed to present facts required for the jury to find for plaintiff on the whistleblower protection claim. The Court therefore grants defendant's motion, vacates the judgment, and enters judgment in favor of the defendant.

2

LEGAL STANDARD

Motions for judgment as a matter of law are governed by Federal Rule of Civil Procedure 50. Rule 50(a) governs pre-verdict motions, and Rule 50(b) applies to post-verdict motions. In the Ninth Circuit, a motion for judgment as a matter of law pursuant to Rule 50(b) is appropriate when the evidence permits only one reasonable conclusion, and that conclusion is contrary to that of the jury. Martin v. Cal. Dep't of Veterans Affairs, 560 F.3d 1042, 1046 (9th Cir. 2009). Thus, a party cannot properly “raise arguments in its post-trial motion for judgment as a matter of law under Rule 50(b) that it did not raise in its pre-verdict Rule 50(a) motion.” Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003). All evidence must be viewed in the light most favorable to the nonmoving party, and the court must draw all reasonable inferences in that party's favor. E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009). The Court must also “disregard all evidence favorable to the moving party that the jury is not required to believe.” FiftySix Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1069 (9th Cir. 2015). “[I]n entertaining a motion for judgment as a matter of law, the court ... may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). A jury verdict “must be upheld if it is supported by substantial evidence ... even if it is also possible to draw a contrary conclusion.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002).

DISCUSSION

The Court does not question a jury's verdict lightly. The bar to relief under Rule 50 is high, and for good reason: the jury trial right is protected by the Seventh Amendment and a core element of both the integrity of our judicial system^[1] and the vibrancy of our political society.^[2] But when

3

plaintiff elected to file this claim in Oregon, alleging violations of Oregon's employment statutes, she erected for herself the hurdle of proving that defendant's purportedly unlawful acts were subject to Oregon's legislative jurisdiction. On review, this is a purely legal question, and the Court need not and does not question any of the jury's factual findings. For the following reasons, AstraZeneca's Rule 50(b) motion is granted. The judgment is vacated, and judgment is awarded in defendant's favor.

I. Defendant Did Not Waive Its Rule 50(b) Arguments

Plaintiff first argues that AstraZeneca waived the argument that Oregon's whistleblower protection statute cannot apply because it failed to plead it among its affirmative defenses. Plaintiff cites Federal Rule of Civil Procedure 8(c)(1), which provides that “[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense.” Without pointing to any supporting precedent, plaintiff suggests that defendant's Rule 50(b) argument is an “avoidance” that must be pled in an Answer, or else it is waived. The Court disagrees.

Although plaintiff attempts to characterize AstraZeneca's Rule 50(b) motion as raising an “avoidance, ” the Court finds it more akin to the defense that plaintiff failed to state a claim upon which relief could be granted. AstraZeneca timely pled “failure to state a claim” as an affirmative defense in its Answer. ECF 36 ¶116. And again, in its Rule 50(a) and (b) motions, Astrazeneca argues that plaintiff failed to prove the “factual nexus between Oregon and an alleged discriminatory or retaliatory act, ” which is required to state a claim under Oregon's Whistleblower Protection Law. See ECF 134 at 3 (50(a)); ECF 152 at 11 (50(b)). Indeed, plaintiff had the burden to establish her entitlement to relief under Oregon's Whistleblower Protection Law at trial: “the ordinary default rule [is] that plaintiffs bear the risk of failing to prove their claims.” Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005)”); Nayab v. CapitalOne Bank (USA), N.A., 942 F.3d

4

480, 494 (9th Cir. 2019). Because plaintiff had more than adequate notice that AstraZeneca would raise a defense that plaintiff failed to allege a basis for liability under Oregon's Whistleblower Protection Law, plaintiff cannot now cry foul that AstraZeneca renews this defense at the Rule 50 stage.^[3]

Nor did AstraZeneca waive the conflict of laws or constitutional arguments it raises for the first time in its Rule 50(b) motion. Plaintiff argues that AstraZeneca did not raise, and therefore did not properly preserve, the arguments that the federal Constitution and Oregon's choice of law rules support dismissal in its Rule 50(a) motion. Generally speaking, plaintiff is right-the court may only consider an issue raised in a Rule 50(b) motion if that same issue was previously raised in a Rule 50(a) motion. See Cleavenger v. Univ. of Oregon, No. CV 13-1908-DOC, 2016 WL 814810, at *7 (D. Or. Feb. 29, 2016). But the Ninth Circuit is clear that a party can argue the “logical extension[s]” of its Rule 50(a) arguments on a renewed 50(b) motion. See E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 962 (9th Cir. 2009). Here, defendant renews its argument that Oregon's state laws do not reach its conduct proven at trial and adds additional reasons for it. These additional reasons address the same legal issue-failure to prove sufficient factual nexus between Oregon and plaintiff's claim-and rely on the same basic premise of the Rule 50(a) submission: that plaintiff failed to prove facts necessary to support Oregon's jurisdiction. Because

5

these constitutional and choice of law arguments are natural outgrowths of AstraZeneca's Rule 50(a) motion, the Court finds they are appropriate to consider here.^[4]

II. To Uphold the Jury's Verdict Would Violate Oregon's State Law Presumption Against Extraterritoriality

Plaintiff chose to file this case in the District of Oregon, alleging, among other things, that defendant violated Oregon's Whistleblower Protection law. In doing so, plaintiff opted to be bound by the substantive state law of Oregon, including Oregon's common law and statutory presumption against extraterritorial effect of its employment statutes. Because plaintiff failed to overcome this presumption, and to provide the jury with a basis to find Oregon's Whistleblower Protection Law applied to these facts and these parties, the Court must vacate the judgment under Rule 50.

Oregon courts have consistently held that statutes must be construed to prohibit their extraterritorial application unless the language of the statute shows Oregon's Legislature intends them to have a broader scope. State v. Meyer, 183 Or.App. 536, 544-45 (2002). The Oregon Supreme Court has held that “[n]o legislation is presumed to be intended to operate outside of the jurisdiction of the state enacting it. In fact, a contrary presumption prevails, and statutes are generally so construed.” Swift & Co. v. Peterson, 192 Or. 97, 121 (1951) (citing Sandberg v. McDonald, 248 U.S. 185 (1918)); see also State ex rel Juvenile Dept. v. Casteel, 18 Or.App. 70, 75 (1974) (“It is axiomatic that the laws of a state have no extraterritorial effect.”).^[5]

6

The Court will not depart from Oregon's default rule that its statutes ought not apply to conduct or people beyond its borders absent language about extraterritorial effect. This is the rule of Swift & Co., where the Court held that when a statute is “silent” as to its application to out-ofstate conduct, that “demonstrate(es) that the legislature had no intention to reach” conduct out-ofstate, “well knowing that it had neither jurisdiction nor power to compel” out-of-state actions. 192 Or. at 121-22; see also Meyer, 183 Or.App. at 547. Here, nothing in Oregon's Whistleblower Protection Law discloses any intent for the law to operate outside of Oregon:

It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion compensation or other terms, conditions, or privileges of employment for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule, or regulation

ORS § 659A.199(1). The statute has no language to suggest it should (or could) apply outside Oregon. Without language about geographic scope or any other structural indication that ORS § 659A.199(1) should apply outside Oregon's borders, the Court therefore presumes it has no effect on conduct or to individuals outside of the state.

After a...