                                                                             FILED
                            NOT FOR PUBLICATION                                JUL 16 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



JEFFREY FEHR and AUDREY FEHR,                     No. 09-35768

              Plaintiffs - Appellants,            D.C. No. 3:08-cv-01102-KI

  v.
                                                  MEMORANDUM *
JOHN KENNEDY and BATEMAN
SEIDEL MINER BLOMGREN CHELLIS
& GRAM, P.C.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Garr M. King, Senior District Judge, Presiding

                              Submitted July 14, 2010**
                                 Portland, Oregon

Before: PREGERSON, WARDLAW, and RAWLINSON, Circuit Judges.

       Plaintiffs Jeffrey and Audrey Fehr ('Fehrs') filed this diversity action in

federal district court against defendant John Kennedy ('Kennedy') for legal


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
malpractice. Kennedy represented the Fehrs at the mediation of ASH v. Fehr.

The Fehrs allege that they relied on Kennedy's advice to reject a settlement offer

made at the mediation and consequently received a less favorable disposition at

trial. The district court granted Kennedy's motion for summary judgment because

the Fehrs were unable to present any evidence of attorney malpractice without

disclosing confidential mediation communications. Confidential mediation

communications are inadmissible under Or. Rev. Stat. y 36.222(1), which

provides: '[M]ediation communications and mediation agreements that are

confidential . . . are not admissible as evidence in any subsequent adjudicatory

proceeding, and may not be disclosed by the parties or the mediator in any

subsequent adjudicatory proceeding.' The district court had jurisdiction under 28

U.S.C. y 1332 and we have jurisdiction under 28 U.S.C. y 1291. We affirm.

        We review de novo a district court's decision granting summary judgment

and interpreting state law. Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d

365, 369 (9th Cir. 1998). Or. Rev. Stat. y 36.222(1) prohibits disclosure of

mediation communications in 'any subsequent adjudicatory proceeding.' The

parties dispute whether the term 'any subsequent adjudicatory proceeding' applies

to actions between a party to mediation and his or her attorney. We hold that it

does.


                                          2
      The text and context of y 36.222(1) demonstrate that the Oregon legislature

intended the term 'any subsequent adjudicatory proceeding' to be read broadly.

The word 'any' is broad and inclusive, suggesting that y 36.222's nondisclosure

requirement applies to the present legal malpractice action. See Wiederhorn v.

Multnomah Athletic Club, 170 P.3d 1, 3 (Or. App. 2007) (pointing out that all

definitions of the word 'any' 'incorporate an element of inclusiveness').

      Moreover, even though the Oregon legislature provided a number of

exceptions to the nondisclosure requirement, it did not provide an exception for

actions between a party to a mediation and his or her attorney. Two of these

exceptions would be superfluous if we interpreted 'any subsequent adjudicatory

proceeding' to be limited to actions involving the same issues and parties as those

involved in the underlying mediation. See Or. Rev. Stat. y 36.222(5) (exception

permitting disclosure of confidential mediation communications in actions between

a party to a mediation and a mediator or mediation program); y 36.222(6)

(exception permitting disclosure of confidential mediation communications that

directly relate to child or elder abuse under certain circumstances). Therefore, the

Oregon legislature clearly did not intend the term 'subsequent adjudicatory

proceedings' to be limited to proceedings that raise the same issues and involve the

same parties as the mediation. See Larsen v. Bd. of Parole and Post-Prison


                                          3
Supervision, 138 P.3d 16, 19 (Or. App. 2006) ('As a general rule, we assume that

the legislature did not intend any portion of its enactments to be meaningless

surplusage.').

      The Fehrs' action against Kennedy for legal malpractice is a 'subsequent

adjudicatory proceeding' within the meaning of the statute. Accordingly, the

Fehrs may not introduce any confidential mediation communications to prove their

legal malpractice claim. Or. Rev. Stat. y 36.222(6). Without admitting confidential

mediation communications, the record is devoid of any evidence of legal

malpractice. Therefore, the Fehrs have failed to raise a genuine issue of material

fact, and the district court was justified in granting summary judgment in favor of

Kennedy.

      AFFIRMED.




                                          4
                                           FILED
                                             JUL 16 2010
Rawlinson, Circuit Judge, concurring:   MOLLY C. DWYER, CLERK
                                         U.S . CO U RT OF AP PE A LS




     I concur in the result.
