FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES PATTON,
Plaintiff-Appellee,
v. No. 08-35177
TARGET CORPORATION,
Defendant-Appellee, DC No.
03-CV-1722 BR
v. OPINION
STATE OF OREGON,
Plaintiff-Intervenor-Appellant.
On Certification from the Supreme Court
of the State of Oregon
Resubmitted December 14, 2010
Filed December 27, 2010
Before: Harry Pregerson, Pamela Ann Rymer, and
A. Wallace Tashima, Circuit Judges.
Per Curiam Opinion
20629
PATTON v. TARGET CORP. 20631
COUNSEL
Lori Irish Bauman, Ater Wynne LLP, Portland, Oregon, for
the plaintiff-appellee.
Michael A. Griffin, Jackson Lewis LLP, Seattle, Washington,
for the defendant-appellee.
Rolf C. Moan, Supreme Court Coordinator, Office of Attor-
ney General, Salem, Oregon, for the plaintiff-intervenor-
appellant.
OPINION
PER CURIAM:
Under Oregon’s split-recovery statute, OR. REV. STAT.
§ 31.735, the State of Oregon (the “State”) is entitled to 60
percent of any punitive damages awarded under Oregon law.
The statute applies to cases decided under Oregon law in fed-
eral court. DeMendoza v. Huffman, 51 P.3d 1232, 1235-37
(Or. 2002). In the case at bench, after the jury awarded a sub-
stantial amount of punitive damages1, but before judgment
was entered on the verdict, plaintiff and defendant settled the
case for an undisclosed amount, without notice to or approval
1
The jury awarded $17,950 in economic damages, $67,000 in noneco-
nomic damages, and $900,000 in punitive damages. The record reflects no
post-verdict motions, e.g., under OR. REV. STAT. § 31.730; see BMW of N.
Am. v. Gore, 517 U.S. 559, 574-85 (1996); Parrott v. Carr Chevrolet, Inc.,
17 P.3d 473 (Or. 2001).
20632 PATTON v. TARGET CORP.
of the State. It is uncontested that the State was excluded from
the settlement. Because no reported Oregon case addressed
whether the parties could settle a case at the post-verdict stage
so as to eliminate the State’s share of the punitive damages
awarded by the verdict, we certified the question to the
Supreme Court of Oregon, which it accepted.
[1] We do not repeat the background facts or the proce-
dural history of this case, which are adequately set forth in the
prior opinions in this case. See Patton v. Target Corp., 2008
WL 361201 (D.Or. 2008) (approving settlement); Patton v.
Target Corp., 580 F.3d 942 (9th Cir. 2009) (certifying ques-
tion to Oregon Supreme Court); Patton v. Target Corp., 2010
WL 4539445 (Or. Nov. 12, 2010) (en banc) (answering certi-
fied question). We certified the following question under Ore-
gon law to the Oregon Supreme Court:
When a jury has returned a verdict that includes
an award of punitive damages under Oregon law, is
the State of Oregon’s consent necessary before a
court may enter a judgment giving effect to any set-
tlement between the parties that would result in a
reduction or elimination of the punitive damages to
which the State would otherwise be entitled under
Oregon Revised Statutes § 31.735?
580 F.3d at 948-49. The Oregon Supreme Court answered the
question “no.” 2010 WL 4539445, at *8. Because the Oregon
Supreme Court’s reasoning in support of its answer is fully
and ably explicated in its opinion, id., we will not restate it
here, except to note that court’s concluding paragraph:
In this case, it simply is not possible for us to con-
clude that ORS 31.735 as presently worded makes
the state’s consent necessary before a court may
enter a judgment giving effect to a settlement
between the parties that would reduce or eliminate
punitive damages to which the state otherwise would
PATTON v. TARGET CORP. 20633
be entitled, even if that is what the legislature
intended. The answer to the certified question is
“no.”
Id. On supplemental briefing after the Oregon Supreme Court
answered our certified question, all parties to this appeal
agreed that the Oregon Supreme Court’s answer to the certi-
fied question is dispositive of this appeal.
[2] Because the district court correctly concluded that OR.
REV. STAT. § 31.735 does not require that the State consent to
the parties’ post-verdict settlement, we affirm its dismissal of
the action with prejudice, as well as the district court’s order
denying the State’s motion for relief from the judgment of
dismissal.
AFFIRMED.