MEMORANDUM **

California state prisoner Thomas Bodnar appeals pro se from the district court‘s judgment dismissing his 42 U.S.C. § 1983 action alleging excessive force and deliberate indifference to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Cabrera v. City of Huntington Park, 159 F.3d 374, 381 (9th Cir. 1998) (dismissal on the basis of res judicata); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)). We affirm.

The district court properly dismissed Bodnar‘s Fourth and Eighth Amendment claims arising from the January 6, 2006 arrest as barred by the doctrine of res judicata because those claims were raised, or could have been raised, in a prior federal action between the same parties, and that action resulted in a final judgment on the merits. See Cabrera, 159 F.3d at 381 (setting forth elements of res judicata and explaining that the doctrine bars subsequent litigation both of claims that were raised and those that could have been raised in the prior action).

The district court properly dismissed Bodnar‘s Eighth Amendment claims arising from medical treatment he received after the January 6, 2006 arrest because Bodnar failed to name the allegedly responsible defendants. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section 1983 there must be a showing of personal participation in the alleged rights deprivation....“).

The district court did not abuse its discretion by denying Bodnar further leave to amend because amendment would be futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and stating that dismissal without leave to amend is appropriate where amendment would be futile).

AFFIRMED.

MEMORANDUM **

At issue in this case is whether three insurance companies (collectively the “Insurers“) had a duty to defend Willowood USA, LLC (“Willowood“) against a suit by the Repar Corporation (“Repar“) arising from Willowood‘s agreement to distribute Repar‘s tebuconazole products (“TEBUCON“) and to indemnify Willowood for the settlement of that suit. The district court twice granted summary judgment to the Insurers, finding that because their policies did not cover Repar‘s claims, they had no duty to defend the suit or provide indemnification for the settlement. We have jurisdiction of Willowood‘s appeals under 28 U.S.C. § 1291. We reverse and remand to determine whether the settlement was for a covered claim.

1. “If the complaint, without amendment, may impose liability for conduct covered by the policy, the insurer is put on notice of the possibility of liability and it has a duty to defend.” Ferguson v. Birmingham Fire Ins. Co., 254 Or. 496, 460 P.2d 342, 347 (1969). The Insurers’ policies each cover injury arising from “use of another‘s advertising idea in your ‘advertisement.‘” Oregon courts broadly interpret the term “arising out of” in this context. Ristine ex rel Ristine v. Hartford Ins. Co. of Midw., 195 Or.App. 226, 97 P.3d 1206, 1208 (2004). Repar‘s second amended complaint specifically alleged injury from Willowood‘s use of Repar‘s advertising idea—the TEBUCON name—in Willowood‘s advertising. This was sufficient to put the Insurers on notice of the possibility of covered liability and trigger the obligation to defend. See Bresee Homes, Inc. v. Farmers Ins. Exch., 353 Or. 112, 293 P.3d 1036, 1039 (2012). The district court should therefore have granted summary judgment to Willowood with respect to the obligation to defend and we remand with instructions to do so.

2. The “facts that form[ ] the basis for the settlement” determine whether the insurer must indemnify. Id. at 1044. Willowood proffered a declaration from trial counsel, a letter from counsel to Willowood‘s CEO, and the declaration from the CEO, all indicating that the Repar settlement was at least in part based on covered breach of implied contract claims. This was sufficient to create a triable issue on whether the settlement was for a covered claim, and we remand for a trial on that issue. See Ledford v. Gutoski, 319 Or. 397, 877 P.2d 80, 84 (1994).

REVERSED and REMANDED.

ZOUHARY, District Judge, dissenting:

As the majority notes, Willowood‘s insurance policies cover injuries “arising out of ... the use of another‘s advertising idea in your ‘advertisement.‘” But the policies also exclude coverage for injuries “arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights.” Oregon courts “broadly” interpret the term “arising out of” to mean “flowing from,” “having its origin in,” or with “a causal connection.” Ristine ex rel. Ristine v. Hartford Ins. Co. of Midwest, 195 Or.App. 226, 97 P.3d 1206, 1208 (2004) (internal quotation marks omitted).

I agree with the majority that the name TEBUCON may constitute an advertising idea. But, as the district court observed, TEBUCON is also, first and foremost, a trademark. See generally Sport Supply Grp., Inc. v. Columbia Cas. Co., 335 F.3d 453, 462-65 (5th Cir. 2003) (discussing distinction between trademark and advertising idea). Repar‘s claims for advertising injury based on Willowood‘s use of the TEBUCON name all arise out of the misuse of that trademark—the so-called “gravamen” of the Second Amended Complaint. As such, these claims are expressly excluded from coverage. And, unlike the breach of contract exclusion, the intellectual property exclusion contains no exception for trademarks that are also advertising ideas. Reviewing the policies and the Second Amended Complaint de novo, see Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070, 1086 (9th Cir. 2013); N. Pac. Ins. Co. v. Hamilton, 332 Or. 20, 22 P.3d 739, 741-42 (2001), I would affirm the district court order granting summary judgment in favor of the insurance companies on the duty to defend.

As for the duty to indemnify, this is an even narrower obligation and “arises only when the insurance policy actually covers the harm.” Am. Med. Response Nw., Inc. v. ACE Am. Ins. Co., 31 F.Supp.3d 1087, 1097 (D. Or. 2014) (citing Nw. Pump & Equip. Co. v. Am. States Ins. Co., 144 Or.App. 222, 925 P.2d 1241, 1243 (1996) (en banc)). Because “[t]he pleadings clearly took the case out of ... coverage,” Jarvis v. Indem. Ins. Co. of N. Am., 227 Or. 508, 363 P.2d 740, 744 (1961); see also Mut. of Enumclaw Ins. Co. v. Jonas, 35 Fed.Appx. 556, 558 (9th Cir. 2002) (“No duty to indemnify exists if no claim in a complaint falls within a policy‘s coverage.“), I would also affirm the district court order granting summary judgment in favor of the insurance companies on indemnification.

I found the district court analysis of these issues—which the majority does not address—thorough and well-reasoned, and I believe the district court accurately applied Oregon law to the facts of this case. For these reasons, I respectfully dissent.

MEMORANDUM **

Brad Greenspan appeals from the district court‘s order denying his Federal Rule of Civil Procedure 60(b) motion for relief from the judgment dismissing for failure to prosecute Greenspan‘s putative shareholder class action. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

In his opening brief, Greenspan failed to challenge the district court‘s dismissal of his action or any other district court order, and therefore Greenspan waived any such challenge. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]rguments not raised by a party in its opening brief are deemed waived.“); Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim....“).

Greenspan‘s notice of appeal challenging the Securities and Exchange Commission‘s (“SEC“) May 2, 2016 Order Determining Whistleblower Award Claim, which was filed in the district court, should have been filed in this court. See 15 U.S.C. § 78u-6(f) (providing that certain determinations of whistleblower awards “may be appealed to the appropriate court of appeals of the United States not more than 30 days after the determination is issued by the Commission“). We construe Greenspan‘s notice of appeal as a petition for review. See Fed. R. App. P. 15(a)(4). In the interests of justice, we transfer Greenspan‘s petition