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Richbourg v. Jimerson

United States District Court, Ninth Circuit

June 28, 2013

KIRK M. RICHBOURG and CAROLE LEE RICKS, a married couple, Plaintiffs,
v.
BOBBY L. JIMERSON and JANE DOE JIMERSON, husband and wife; KIM JIMERSON and JANE DOE JIMERSON, husband and wife; ARIZONA TRANSMISSION & ENGINE EXCHANGE, INC., an Arizona corporation dba GLOBAL INDUSTRIAL AUTOMATICS, Defendants.

ORDER

BRUCE G. MacDONALD, Magistrate Judge.

Currently pending before the Court are Defendants' Motion for Summary Judgment (Doc. 78) (based solely on the statute of limitations) and Motion for Summary Judgment Re: Spoliation of Evidence (Doc. 119). Also pending are Plaintiffs' Cross-Motion for Summary Judgment on the Issue of the Statute of Limitations (Doc. 97), Motion for Summary Judgment on the Indispensable Party, Accord and Satisfaction, Warranty Contract, and Economic Loss Defenses (Doc. 98), Response to Defendants' Supplemental Statement of Facts in Support of Reply in Support of Defendants' Motion for Summary Judgment Re: Statute of Limitations and Motion to Strike Affidavit of Patrick Mehall and for Sanctions (Doc. 115), Response to Defendants' Controverting Statyment [sic] of Response to Plaintiffs' Motion for Summary Judgment on the Indispensable Party, Accord and Satisfaction, Warranty Contract and Economic Loss Defenses and Motion to Strike Affidavit of Patrick Mehall and Motion for Sanctions (Doc. 122), Motion to Strike Affidavits of Patrick Mehall and Bobby L. Jimerson (Doc. 125) and Plaintiffs' counsel's Application of John MacMullin to Withdraw as Counsel for Plaintiffs (Doc. 126). On May 9, 2013, the Court heard oral argument on the summary judgment motions.

I. MOTIONS TO STRIKE

A. Motions to Strike Contained Within Responses

Rule 11, Federal Rules of Civil Procedure, delineates the form of motions for sanctions. It provides in relevant part:

A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.

Fed. R. Civ. P. 11(c)(2). As such, the Plaintiffs' first two motion for sanctions, embedded within their response is improper. See Pls.' Resp. to Defs.' Suppl. Statement of Facts in Supp. of Reply in Supp. of Defs.' Mot. for Summ. J. Re: Statute of Limitations (Doc. 115); Pls.' Resp. to Defs.' Controverting Statement of Resp. to Pls.' Mot. for Summ. J. on the Indispensable Party Accord and Satisfaction, Warranty Contract, and Economic Loss Defenses and Mot. to Strike Aff. of Patrick Mehall and Mot. for Sanctions (Doc. 122). Further, Plaintiffs' third motion to strike amends and reiterates the arguments made in their first motion two. See Pls.' Mot. to Strike Aff. of Patrick Mehall and Bobby L. Jimerson and Mot. for Sanctions (Doc. 125). Accordingly, the Court will deny Plaintiffs' Response to Defendants' Supplemental Statement of Facts in Support of Reply in Support of Defendants' Motion for Summary Judgment Re: Statute of Limitations and Motion to Strike Affidavit of Patrick Mehall and for Sanctions (Doc. 115) and Response to Defendants' Controverting Statyment [sic] of Response to Plaintiffs' Motion for Summary Judgment on the Indispensable Party, Accord and Satisfaction, Warranty Contract and Economic Loss Defenses and Motion to Strike Affidavit of Patrick Mehall and Motion for Sanctions (Doc. 122) as moot. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (first amended complaint supersedes original complaint and court will treat the original complaint as non-existent).

B. Third Motion to Strike

Plaintiffs seek this Court to strike the affidavits of Patrick Mehall and Bobby L. Jimerson. Plaintiffs argue inter alia that Mehall's affidavit is not based upon personal knowledge, lacks foundation and contains hearsay. Pls.' Mot. to Strike Affs. of Patrick Mehall and Bobby L. Jimerson and Mot. for Sanctions (Doc. 125) at 2-3; See Pls.' Resp. to Defs.' Controverting Statement of Resp. to Pls.' Mot. for Summ. J. on the Indispensable Party Accord and Satisfaction, Warranty Contract, and Economic Loss Defenses and Mot. to Strike Aff. of Patrick Mehall and Mot. for Sanctions (Doc. 122). Additionally, Plaintiffs argue that Bobby Jimerson's affidavit is not based on personal knowledge and is not based on "a disclosed, qualified expert opinion." Mot. to Strike Affs. of Patrick Mehall and Bobby L. Jimerson and Mot. for Sanctions (Doc. 125) at 3.

The Affidavits provide both Mehall's and Bobby Jimerson's position with Arizona transmission & Engine Exchange, dba Global Industrial Automatics ("ATEE"). Mehall Aff. 3/13/2013 (Doc. 114) at ¶ 1; Jimerson Aff. (Doc. 120) at ¶ 2. The Mehall Affidavit states, in relevant part, that the affiant "make[s] this Affidavit of [his] own personal knowledge and experience in [his] capacity as CFO (Chief Financial Officer) of ATEE." Mehall Aff. 3/13/2013 (Doc. 114) at ¶ 3. Similarly, Bobby Jimerson's Affidavit states that "[he] make[s] this Affidavit of [his] own personal knowledge and experience in [his] capacity as the manager of ATEE." Jimerson Aff. (Doc. 120) at ¶ 2. Furthermore, the affiants rely on documentary evidence in support of their contentions, many of which are the same as those relied on by the Plaintiffs. "Rule 56 permits the use of affidavits in evaluating a motion for summary judgment[; however, ] [w]hile the facts underlying the affidavit must be of a type that would be admissible as evidence, Fed.R.Civ.P. 56(e), the affidavit itself does not have to be in a form that would be admissible at trial." Hughes v. United States, 953 F.2d 531 (9the Cir. 1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). Additionally, the statements made by Mehall and Bobby Jimerson regarding their positions at ATEE and the personal knowledge regarding their statements are sufficient to demonstrate such personal knowledge. Sea-Land Service, Inc. v. Lozen Intern., LLC., 285 F.3d 808, 819 (9th Cir. 2002) (rejecting defendant's argument to exclude affidavit for lack of foundation and personal knowledge, and holding that the district court did not abuse its discretion by admitting declarations of an employee whose affidavit stated her position and responsibilities and personal knowledge of all matters discussed therein).

Rule 702, Federal Rules of Evidence, provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Plaintiffs broadly assert that neither Mehall or Bobby Jimerson are experts as required by Rule 702 and Supreme Court of the United States case law. See e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Plaintiffs, however, have failed to adduce any evidence to support a finding that Mehall or Bobby Jimerson are unqualified to make the statements found within their affidavits as relating to their position ...


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