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Silaev v. Swiss-America Trading Corp.

United States District Court, D. Arizona

September 8, 2016

Serguei Silaev, Plaintiff,
v.
Swiss-America Trading Corporation, Defendant.

          ORDER

          James A. Teilborg Senior United States District Judge.

         Pending before the Court is Defendant Swiss-America Trading Corporation's Motion for Summary Judgment, (Doc. 42), filed in response to Plaintiff Serguei Silaev's action alleging fraud-among other claims-stemming from several purchases of numismatic and commemorative in 2006.

         Concerned with the circumstances surrounding his purchases and a precipitous decline in their value, Plaintiff filed suit in Maricopa County on October 15, 2014. (Doc. 1). After removal to this Court, Defendant prevailed on an unopposed motion to dismiss three counts from the First Amended Complaint, (Doc. 23), leaving active claims of fraud, breach of contract, negligence/negligent misrepresentation, and breach of warranty.[1] (Id. at 2). Having considered the parties' filings, the Court now rules on Defendant's motion for summary judgment on all remaining claims.

         I.

         Plaintiff is a Russian citizen who has lived in the United States for twenty-five years and is a permanent resident. He worked “in the gold mining and exploration industry” for over two decades, and holds a degree in “economic geology, ” a field that entails “assessing the extent of gold present in a mine and the expense and profitability of extracting the gold.” (Doc. 43 at 2). In early 2006, Plaintiff, interested in diversifying his investment portfolio, reached out to a number of “numismatic coin dealers” about the possibility of investing in gold. (Id.). Prior to contacting these dealers, Plaintiff had personal experience as an investor.

         Defendant was among the coin dealers that Plaintiff reached out to in 2006, after Plaintiff learned of the company through an advertisement that was aired during a radio talk show. In response to Plaintiff's inquiry, Defendant mailed “investment literature” to Plaintiff which addressed the “benefits and risks of investing in numismatic and precious metal coins.” (Doc. 43 at 2). Having consumed this literature, Plaintiff then spoke with Richard Spohr, a representative of Defendant, by telephone in April 2006.[2] Persuaded by Mr. Spohr's sales pitch that collectible coins were a better investment than gold bullion, Plaintiff made an initial purchase of $25, 810.00 worth of coins on April 11, 2006. (Id. at 3).

         The very next day, Plaintiff made a second purchase from Defendant, acquiring fifty-three coins for a total of $34, 895.76. (Doc. 43 at 4). Plaintiff thereafter made a third purchase on August 15, 2006, for $38, 100.00, and a fourth purchase on August 21, 2006, for $1, 050.00. (Id.). On October 23, 2006, Plaintiff sold forty-nine coins back to Defendant for a total of $57, 825.00, which was then applied as a credit towards Plaintiff's fifth purchase of coins for $56, 800.00.[3] (Id. at 5). This was the final purchase made from Defendant in 2006.[4]

         Following Plaintiff's investment in Defendant's coins, he monitored their performance and watched their values decrease significantly. By February of 2007, Plaintiff arrived at the conclusion that it was a mistake to invest in the coins, and he unsuccessfully attempted to dissuade a family member from making a similar purchase. (Doc. 43 at 12). Plaintiff, however, retained the coins he purchased until 2009, when he contacted Defendant in an effort to sell the coins back. (Id.). The price Defendant offered, however, was unacceptable and Plaintiff declined. Despite the poor performance of his investments in numismatic and commemorative coins, Plaintiff was not deterred from making a final investment. On August 24, 2009, after speaking Michael Gaynor, Plaintiff made his sixth and final purchase from Defendant, acquiring twenty coins for $38, 500.00. (Doc. 43 at 5).

         At some point in 2012, Plaintiff, concerned with the performance of his investments and the circumstances surrounding his purchases retained legal representation. On July 30, 2012, Plaintiff furnished a demand letter on Defendant seeking more than $160, 000 in damages, and advancing a number of possible legal claims. (Doc. 43-25 at 1-7). Plaintiff's efforts were unsuccessful, however, and he filed suit in Maricopa County Superior Court on October 15, 2014. (Doc. 1 at 2). On November 18, 2014, Defendant removed the case to this Court.

         Having set forth the pertinent factual and procedural background, the Court now turns to Defendant's pending motion.

         II.

         Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Assurance Co. of Am. v. Wall & Assocs. LLC of Olympia, 379 F.3d 557 (9th Cir. 2004) (citation omitted); see also Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating to the Court the basis for and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-movant to establish the existence of a material fact in dispute. Id. The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts” by “com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original) (quoting Fed.R.Civ.P. 56(e) (1963) (amended 2010)).

         A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247- 48. But in the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

         Finally, when deciding a motion for summary judgment, “[t]he court need consider only the cited materials.” Fed.R.Civ.P. 56(c)(3). The Court is under no obligation to “scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); Fed.R.Civ.P. 56(c)(3) (noting a court “need[s]” to consider the cited material but “may consider other materials in the record”). And the party opposing that motion must “identify with reasonable particularity the evidence that precludes summary judgment.” Keenan, 91 F.3d at 1279; Orr v. Bank of America, NT & SA, 285 F.3d 764, 775 (9th Cir. 2002) (“The efficient management of judicial business mandates that parties submit evidence responsibly.”). Thus, the party opposing summary judgment cannot simply make broad generalizations supported by pointing to the record as a whole to successfully oppose summary judgment. See Keenan, 91 F.3d at 1279 (criticizing counsel for providing “multiple citations [to the record] in lieu of simply stating the material facts disputed”).

         III.

         A. Plaintiff's Failure to Adhere to Local Rule 56.1(b)

         At the outset, the Court must address the insufficiency of Plaintiff's summary judgment filings. Defendant filed a motion for summary judgment in addition to a separate statement of supporting facts, as Local Rule 56.1(a) requires. Plaintiff thereafter filed his opposition on May 25, 2016, but failed to file a separate, contravening statement of facts as mandated by Local Rule 56.1(b).[5] The failure to submit a controverting statement of facts, by itself, can be “fatal” to opposing summary judgment. See Malcolmson v. Topps Co., No. CV-02-2306-PHX-GMS, 2010 U.S. Dist. LEXIS 7680, at *10 (D. Ariz. Jan. 28, 2010) (noting that the plaintiff “effectively admitted” the defendant's “version of the facts . . . because he failed to file a controverting statement of facts in compliance with . . . Local Rule 56.1(b)”); see also Buchanan v. Deutsche Bank Trust Co., No. CV-12-637-PHX-SMM, 2013 U.S. Dist. LEXIS 140843, at *2 (D. Ariz. Sept. 30, 2012).

         Moving beyond Plaintiff's failure to adhere to procedural rules, his opposition to Defendant's motion-instead of producing evidence in support of his position coupled with citation to applicable law-is comprised of stock legal standard and conclusory, uncorroborated assertions that summary judgment is not warranted. For example, in opposing summary judgment on his fraud claim, Plaintiff simply asserts that “[b]ased on the sworn affidavit testimony of Plaintiff . . . set forth above, the representation of facts, including their falsity and materiality, are prevalent within this proper summary judgment evidence.” (Doc. 46 at 7). And in opposition to summary judgment on his “contractual claims [and] warrant[y] claims, ” Plaintiff merely argues that “[i]t is clear from the attached, timely summary judgment evidence, that Plaintiff . . . entered into a contractual relationship, and one in which [Defendant] had warranted the characteristics of the product sold to Plaintiff at a huge profit” and that “[a]t days end, Defendant breached the contract by selling a product that was not at all what [Defendant] warrantied it to be.” (Id. at 8-9). These vague references to the record and conclusory assertions, which are unsupported by reasonably identifiable evidence, are impermissible means to oppose summary judgment. Anderson, 477 U.S. at 247-48; Keenan, 91 F.3d at 1279.

         In light of Plaintiff's failure to comply with the Local Rules, his uncorroborated and conclusory opposition, and the lack of a cognizable record in support, it is evident that Plaintiff has failed to meaningfully respond to Defendant's statement of facts. The only evidence offered in opposition is a four page affidavit authored by Plaintiff. Excusing the violation of Local Rules, and considering the portions of the affidavit that do not conflict with Plaintiff's deposition testimony, [6] it too fails to challenge Defendant's factual assertions. For example, nothing in Plaintiff's affidavit addresses Defendant's characterization of the alleged false statements at issue, the applicable statutes of limitation, when Plaintiff became aware of the injuries he had suffered, his damages, the lack of an expert or expert report, and his breach of contract and breach of warranty claims, a significant portion of Defendant's statement of facts. Thus, even considering Plaintiff's affidavit, it fails to consequentially challenge Defendant's version of events, and the result is that the Court is left with only Defendant's view of the facts. See Fed. R. Civ. P. 56(e)(2) (If the non-movant does not properly address a statement of fact, the Court may consider that fact undisputed for purposes of the motion). Accordingly, the Court will deem Defendant's statement of facts undisputed unless the record proves otherwise and will grant summary judgment in favor of Defendant “if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(3).

         Finally, the Court is compelled to address the fact that the instant action is not the only instance in which counsel for Plaintiff failed to adhere to the Local Rules governing summary judgment. On May 13, 2016, Judge Silver issued an order granting Defendant summary judgment on all claims in Philip Mann, et al. v. Swiss-America Trading Corporation, No. CV-14-002552-PHX-ROS, a case in which counsel also represented the plaintiffs. In her order, Judge Silver observed that the plaintiffs' summary judgment filings were lacking, as the Plaintiffs failed to file a contravening statement of facts in accordance with Local Rule 56.1(b). Judge Silver noted that this failure “alone” was “fatal” to the plaintiffs' claims. Counsel, in the instant action, filed an opposition to Defendant's motion for summary judgment on May 25, 2016, a full twelve days after Judge Silver had informed counsel that the failure to adhere to L.R.Civ. 56.1(b) was fatal to his client's claims. Inexplicably, armed with this knowledge-and having obtained a week's extension from this Court to file the response-(Doc. 45), counsel again failed to abide by L.R.Civ. 56.1(b) and filed ...


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