Opinion
Civil No. 00-3118-CO.
March 8, 2004
ORDER
Plaintiff brings this action for breach of contract, promissory estoppel, and quantum meruit. Plaintiff is an Oregon resident, defendant is a California resident, and the matter in controversy exceeds $75,000.00. This court has jurisdiction pursuant to 28 U.S.C. § 1332. The parties executed written consents for entry of final judgment by a Magistrate Judge. 28 U.S.C. § 636©).
The court granted defendant's second motion for summary judgment. Plaintiff moves for reconsideration of the court's ruling pursuant to Fed.R.Civ.P. 59(e) (#97).
In this case, plaintiff argues that: the court failed to address plaintiff's primary argument on the statute of frauds — full performance and promissory estoppel avoids the statute of frauds; Ehler v. Peck, 286 Or. 523 (1979) does not apply to the issues in this case — Ehler did not address whether full performance or promissory estoppel avoids ORS 41.580(1)(g); and Oregon case law has applied equitable principles to avoid the statute of frauds.
In response, defendant argues that: the statute of frauds precludes relief for plaintiff; plaintiff's motion fails to raise any new or different arguments concerning the statute of frauds; and plaintiff failed to comply with the consultation requirements of Local Rule 7.1 before filing the motion.
In reply, plaintiff argues that: defendant's argument regarding the application of Ehler to preclude the application of equitable principles to avoid the statute of frauds is too speculative; other jurisdictions have applied equitable principles to oral agreements to pay real estate commissions; under Oregon law, equitable principles may be applied to avoid the statute of frauds; and a conference with opposing counsel would not have resolved this dispute.
A court may reconsider its grant of summary judgment under either Rule 59(e) or Rule 60(b). School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993),cert. denied, 512 U.S. 1236 (1994). Reconsideration of a decision is appropriate if the court: 1) is presented with newly discovered evidence; 2) committed clear error or the initial decision was manifestly unjust; or 3) there is an intervening change in controlling law. Id. at 1263.
It appears plaintiff's motion is based on the second factor. The court on page 17 of its order found that the statute of frauds barred plaintiff's claims for recovery, citing Ehler. The court clearly addressed all of plaintiff's claims and found that they were barred under Ehler.
The court again finds that Ehler bars plaintiff's recovery. In Ehler, the plaintiff testified that the defendant promised to pay a commission and the plaintiff also fully performed by acting as an agent to negotiate the purchase of the property.Ehler, 286 Or. at 525-526. Although the court in Ehler did not directly hold that promissory estoppel and full performance were not available to avoid the statute of frauds, this court finds that the facts of Ehler support this inference.
Based on the court's previous order granting summary judgment, the reasoning set forth in this order, and the arguments and authority set forth in defendant's opposition to this motion for reconsideration, it is ordered that plaintiff's second motion for reconsideration (#97) is denied.