United States District Court, D. Arizona
Douglas L. Rayes United States District Judge
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.
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).
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).
RULE OF CIVIL PROCEDURE 56.1
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.).”
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).
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. 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.
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.)
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.)
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. (¶ 1.) Mrs. Ore was
identified as the victim in the state criminal case against
Lewis. (¶ 2.)
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.)
Assault and Battery
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.”
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
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
Paradise Valley, 815 F.3d at 1210 (quoting Mein
ex rel Mein v. Cook, 193 P.3d 790, 794 (Ariz.Ct.App.
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.
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 ...