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Barclay v. Medicine Show Land Trust

United States District Court, D. Arizona

February 19, 2014

William Barclay, Plaintiff,
Medicine Show Land Trust et al., Defendants.


STEPHEN M. McNAMEE, Senior District Judge.

Before the Court are two motions: Medicine Show Land Trust's, James RedCloud's, and Elizabeth Durham's First Motion for Summary Judgment on All Causes of Action; and Plaintiff's Cross-motion for Partial Summary Judgment. (Docs. 45; 58.) While Defendants' motion is fully briefed (Docs. 45; 58; 63), Plaintiff's motion is not: Defendants responded but Plaintiff did not reply. (Docs. 58; 63.)


This case arises out of a 2011 motorcycle competition known as the "Hoka Hey Motorcycle Challenge" (the "Challenge"), which was the second of a now annual cross-continent, multi-day endurance race. (Doc. 8 at 1.) The Challenge is owned and organized by Defendant Medicine Show Land Trust (the "Trust"); the Trust was settled by Defendant James G. RedCloud ("RedCloud") and the trustee is Defendant Elizabeth Durham ("Durham"). (Doc. 14 at 2.) RedCloud and Durham are married. (Id.) The 2011 Challenge started at-and was based out of-dismissed Defendant E.B. Chester's ("Chester") Mesa, Arizona Harley Davidson dealership; the Challenge ended at Sydney, Nova Scotia. (Id.)

Plaintiff William Barclay ("Barclay") visited the Challenge's offices at Chester's dealership and filled out the paperwork required to participate in the 2011 Challenge. (Doc. 60 ¶ 5.) The paperwork was available online and was comprised of three separate documents: an "Entry Application, " a "Terms and Conditions, " and a "Waiver and Release of Liability" (collectively the "Participation Agreement"). (Docs. 47-2; 47-3; 47-4; 47-5; 60 ¶ 5.) The Participation Agreement was preprinted, standardized, and offered on a take it or leave it basis. (Doc. 60 ¶ 6.) After "review[ing]" the Terms and Conditions and "scann[ing]" the Application and Waiver, Barclay signed all three documents. ( Id. ¶ 7.)

Barclay was the first entrant to reach the destination within the allotted time in both the 2010 and 2011 Challenges. (Doc. 14 at 2.) One of the Terms and Conditions of both the 2010 and 2011 Challenges was that all entrants who reached the destination within the allotted time and without deviating from the prescribed route (the "Contenders") subject themselves to polygraph testing. (Docs. 8 at 8-9; 47-4 at 3.) Barclay was named the winner of the 2010 Challenge following his polygraph examination, and claims that both the polygrapher for his 2011 examination and RedCloud told him that he passed the examination. (Doc. 8 at 9.) RedCloud, Durham, and the Trust deny that Barclay ever passed the polygraph; instead, RedCloud asserts that the polygrapher's assistant informed him that the results of the examination looked favorable but were incomplete, which is the extent of what RedCloud recited to Barclay. (Doc. 14 at 6.) Plaintiff disagreed. (Doc. 8 at 9.)

When Barclay arrived at Chester's Mesa Harley dealership for the 2011 Challenge award ceremony, RedCloud informed Barclay that he was ineligible for prize money because Barclay did not pass the polygraph. (Doc. 14 at 6-7.) The reason Barclay did not pass was because the polygrapher concluded Barclay's results were inconclusive as a result of Barclay's employment of dramatically sufficient suppressive countermeasures. ( Id. at 7.) After Plaintiff left Chester's dealership, RedCloud told the remaining Contenders that Barclay was a contract pilot for the C.I.A., and that Barclay cheated "his people" and the entrants of the Challenge. (Id.) It is disputed whether RedCloud also told the Contenders: that Barclay passed the polygraph; that Barclay employed countermeasures; and that Barclay cheated in the 2010 and 2011 Challenges. (Compare Doc. 8 at 10, with Doc. 14 at 7.)

A little more then seven months later, Barclay filed this action against the Trust, RedCloud, Durham, and Chester alleging contract and tort causes of action and seeking a declaration that he was the winner of the 2011 Challenge. (Docs. 1; 8.) RedCloud, Durham, and the Trust (collectively "Defendants") moved for summary judgment on all causes of action based on a waiver of liability theory. (Doc. 45.) In his response to Defendants' motion, Barclay moved for partial summary judgment against Defendants' waiver of liability defense. (Doc. 58.) Defendants filed a unitary brief that both replied to Barclay's response and responded to Barclay's motion for partial summary judgment (Doc. 63); however, Barclay did not reply to Defendants' response. Finally, Chester filed a motion for summary judgment (Doc. 75), but was subsequently dismissed as a party by stipulation (Doc. 105).


"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "The substantive law determines which facts are material; only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment." Nat'l Ass'n of Optometrists & Opticians v. Harris , 682 F.3d 1144, 1147 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). To prevail on a motion for summary judgment, the moving party carries the initial "burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Sec. Litig. , 627 F.3d 376, 387 (9th Cir. 2010). When the non-moving party will bear the burden of proof at trial, the moving party can carry its evidentiary burden by proving the "absence of evidence to support the non-moving party's case." Id . If the moving party meets its burden, "the burden then shifts to the non-moving party to" adduce "evidence from which a jury could reasonably render a verdict in the non-moving party's favor." Id . In determining whether a party has met its burden, the Court views the facts in the light most favorable to the opponent and draws all reasonable inferences in the opponent's favor. Liberty Lobby , 477 U.S. at 255.


I. Threshold Matters

Before analyzing the parties' dispositive motions, the Court must iron out four preliminary wrinkles introduced by the Complaint. The first wrinkle concerns Count 1, which requests the Court declare Barclay the winner of the 2011 Challenge and order Defendants to award him all first place prizes pursuant to both the federal Declaratory Judgment Act and Arizona's Uniform Declaratory Judgments Act. (Doc. 8 at 11.) Under both the federal and state declaratory judgment schemes, a court may declare the legal relations of the parties. 28 U.S.C. § 2201 ("[M]ay declare the rights and other legal relations...."); Ariz. Rev. Stat. ("A.R.S.") § 12-1831 ("[S]hall have power to declare rights, status, and other legal relations...."); A.R.S. § 12-1836 ("The court may refuse to... enter a declaratory judgment....").

In Seattle Audubon Soc. v. Moseley , 80 F.3d 1401 (1996) (per curiam), The Ninth Circuit explained:

A declaratory judgment offers a means by which rights and obligations may be adjudicated in... actual controvers[ies] that ha[ve] not reached a stage at which [an interested] party may seek a coercive remedy and in cases where [such] a party... could sue for coercive relief [but] has not yet done so.

Id. at 1405. As a consequence, declaratory judgments are "intended to allow earlier access to federal courts in order to spare potential defendants from the threat of impending litigation." Id . Arizona courts take a similar stance: "The declaratory judgment procedure is not designed to furnish an additional remedy where an adequate ...

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