3:11-cv-01534
D. Or.May 7, 2013Background
- This is a 2011-2013 federal case in the District of Oregon where B&C Transit sues Elcon for services on the Portland Streetcar Loop; summary judgment denied.
- Plaintiff sought subcontracting work (design, shop drawings, submittals, programming, testing, training, etc.) for signals and communications; no final agreement was ever executed.
- Defendant claimed plaintiff’s submittals were untimely/inadequate, with the dispute escalating through 2010 and the project ultimately dissolved on November 17, 2010.
- Plaintiff and its personnel lacked an Oregon engineering license; plaintiff was licensed in other states but not in Oregon.
- Invoicing: plaintiff sought $186,588.51, including $150,000 for a Final Design Submittal and $30,000 for mobilization; other line items were largely at 0% completion.
- Documents reviewed to define scope (Bid, Purchase Order, proposed contracts, Invoice) were inconsistent or lacking detail about the exact engineering scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of illegality defense | Waiver should bar illegality defense due to lack of timely pleading. | Defendant gave adequate notice via interrogatory; no prejudice to plaintiff. | Waiver not established; no prejudice to plaintiff; defense preserved. |
| Choice of law and governing forum | Alaska law should apply to dispute. | Draft agreement not executed; arbitration provisions; Oregon licensing statute governs. | Not deciding governing law; focuses on whether out-of-state engineer violated Oregon licensing statutes. |
| Scope of work and contractual formation | Scope unclear due to multiple documents; no final agreement. | Draft documents show intended engineering work; scope not clearly defined. | Genuine issue of material fact exists about whether plaintiff performed engineering work and the scope thereof. |
| Substantial compliance with Oregon licensing statute | Defendant knew an Oregon-licensed engineer would be responsible; substantial compliance. | Unclear whether substantial compliance occurred; need factual resolution. | Question of fact remains regarding substantial compliance with ORS 672.060(9); summary judgment denied on this issue. |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (burden on movant to show absence of genuine issue of material fact)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (genuine issue of material fact necessary for trial; summary judgment proper only if no such issue)
- T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626 (9th Cir. 1987) (summary judgment standards; materiality and genuine disputes>)