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Lewis v. Dirt Sports LLC

United States District Court, D. Arizona

April 25, 2017

Michael Lewis, Plaintiff,
Dirt Sports LLC, et al., Defendants.


          Douglas L. Rayes United States District Judge

         This personal injury action arises from an altercation that occurred in November 2012 at Mesquite MX, a motocross park located near Colorado City in northern Arizona. At issue is Defendants Michelle and Ronald Ore's motion for summary judgment, which is fully briefed. (Docs. 92-93, 97-98.) For the following reasons, the Ores' motion is granted in part and denied in part.[1]


         Summary judgment is appropriate when there is no genuine dispute as to any material fact and, viewing those facts in a light most favorable to the nonmoving party, the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment may also be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The burden then shifts to the non-movant to establish the existence of a genuine and material factual dispute. Id. at 324. The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts, ” and instead “come 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, 586-87 (1986) (internal quotation and citation omitted).

         Substantive law determines which facts are material and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Conclusory allegations, unsupported by factual material, are insufficient to defeat summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). If the nonmoving party's opposition fails to cite specifically to evidentiary materials, the court is not required to either search the entire record for evidence establishing a genuine issue of material fact or obtain the missing materials. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir. 1988).


         In addition to these general principles, this District's Local Rules of Practice impose specific requirements on the form and content of summary judgment motions. “Any party filing a motion for summary judgment must file a statement, separate from the motion and memorandum of law, setting forth each material fact on which the party relies in support of the motion.” LRCiv 56.1(a). Each of these facts “must refer to a specific admissible portion of the record where the fact finds support (for example, affidavit, deposition, discovery response, etc.).” Id. Likewise:

Any party opposing a motion for summary judgment must file a statement, separate from that party's memorandum of law, setting forth: (1) for each paragraph of the moving party's separate statement of facts, a correspondingly numbered paragraph indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party's position if the fact is disputed; and (2) any additional facts that establish a genuine issue of material fact or otherwise preclude judgment in favor of the moving party. Each additional fact must be set forth in a separately numbered paragraph and must refer to a specific admissible portion of the record where the fact finds support.

LRCiv 56.1(b). The court may deem a movant's separate statement of facts to be true if the nonmoving party does not comply with these rules. See Szaley v. Pima Cty., 371 Fed. App'x 734, 735 (9th Cir. 2010).

         The Ores' submitted a separate statement of facts setting forth each material fact upon which they rely in their memorandum of law. (Doc. 93.) Each paragraph cites to specific evidence in the record against which no admissibility objections have been raised. In violation of LRCiv 56.1(b), however, Lewis did not submit a separate statement of correspondingly numbered paragraphs indicating whether he disputes or admits the facts asserted by the Ores, along with additional facts that he believes preclude summary judgment.[2] Because Lewis failed to submit a separate statement of facts, his memorandum of law fails to “include citations to the specific paragraph in the statement of facts that supports assertions made in the memorand[um.]” LRCiv. 56.1(e). Accordingly, the Court deems the Ores' separate statement of facts to be undisputed for purposes of this order. Szaley., 371 Fed. App'x at 735.


         In November 2012, the Ores were visiting Mesquite MX along with their son and A., a minor in their custody (Children). (Doc. 93 ¶¶ 17, 22, 29.) For unknown reasons, Lewis entered the Ores' campsite uninvited, threatened A., knocked over his motorcycle, and aggressively advanced toward the Children. (¶¶ 24-28.) Believing that Lewis intended to harm the Children, Mrs. Ore stepped between them and held out her arms. (¶¶ 29-30.) Lewis struck Mrs. Ore, throwing her upward and backward and causing her to hit her head on a nearby trailer. (¶¶ 31-33.)

         Brian Worton, another park patron who was drawn to the campsite after hearing the commotion, grabbed Lewis from behind, put him in a headlock, and dragged him to the ground. (¶¶ 34-36.) Lewis continued to struggle, however, and Worton could not get control of his hands. (¶¶ 40, 42, 46.) Believing that he would escape and resume the altercation, Mr. Ore struck Lewis. (¶ 46.) After Lewis managed to escape from Worton's headlock, he scuffled with other unknown men before eventually continuing his fight with Worton. (¶¶ 52-53, 58-60.)

         As a result of the brawl, Lewis sustained multiple injuries, including broken ribs and a punctured lung. (¶ 39.) He also pled guilty to disorderly conduct in Mohave County's North Canyon Consolidated Court.[3] (¶ 1.) Mrs. Ore was identified as the victim in the state criminal case against Lewis. (¶ 2.)

         In November 2014, Lewis brought this action against Dirt Sports, LLC (which owns Mesquite MX), Worton, the Ores, and several other individuals. (Docs. 1, 24.) Lewis later settled his claims against Dirt Sports and voluntarily dismissed his claims against everyone except the Ores, against whom he asserts assault and battery, negligence, and negligent/intentional infliction of emotional distress claims. The Ores now seek summary judgment on all claims against them. (Doc. 23, 28, 79, 92.)


         I. Assault and Battery

         To succeed on a battery claim, Arizona law requires a plaintiff to prove “that the defendant intentionally engaged ‘in an act that results in harmful or offensive contact with the person of another.'” A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1210 (9th Cir. 2016) (quoting Duncan v. Scottsdale Med. Imaging, Ltd., 70 P.3d 435, 438 (Ariz. 2003)). Similarly, to succeed on an assault claim a plaintiff must prove “that the defendant acted ‘with intent to cause another harmful or offensive contact or apprehension thereof, and the other person apprehend[ed] imminent contact.'” Id. (quoting Garcia v. United States, 826 F.2d 806, 809 n.9 (9th Cir. 1987)). “The two claims are the same except that assault does not require the offensive touching or contact.” Id.

         Assault and battery both are intentional torts. See Chappell v. Wenholz, 247 P.3d 192, 195 (Ariz.Ct.App. 2011); Blankinship v. Duarte, 669 P.2d 994, 999 (Ariz.Ct.App. 1983).

Under Arizona law, “the act that caused the harm will qualify as intentional conduct only if the actor desired to cause the consequences-and not merely the act itself-or if he was certain or substantially certain that the consequences would result from the act.” In this respect, Arizona law follows the principle from the Restatement (Second) of Torts that: “If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to product the result.”

Paradise Valley, 815 F.3d at 1210 (quoting Mein ex rel Mein v. Cook, 193 P.3d 790, 794 (Ariz.Ct.App. 2008)).

         In defense, the Ores do not argue that Lewis lacks sufficient evidence to support these elements. The Ores instead contend that the force they used against Lewis was privileged by law because they acted in self-defense or in the defense of others. (Doc. 92 at 11.) Stated differently, the Ores seek summary judgment on the basis of their affirmative defense.

         Under Arizona law, self-defense and the defense of others are affirmative defenses to assault and battery. See A.R.S. §§ 13-413, -404, -406; Gortarez By and Through Gortarez v. Smitty's Super Valu, Inc., 680 P.2d 807, 815 (Ariz. 1984); Garcia, 826 F.2d at 810. “A person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to ...

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