United States District Court, D. Arizona
REPORT AND RECOMMENDATION
J. MARKOVICH UNITED STATES MAGISTRATE JUDGE
personal injury action involves a dispute between the
Plaintiff, Blake Haines, and Defendant Get Air, LLC
(“GALLC”). Haines was injured while performing a
flip at Get Air Tucson, an indoor trampoline park, and is now
a quadriplegic. Haines alleges GALLC produced a defective
Employee Handbook (“EH”) used by Get Air Tucson.
before the Court is GALLC's Motion for Summary Judgment.
(Doc. 238). Pursuant to the Rules of Practice of this Court,
this matter was referred to the undersigned for a Report and
Recommendation. (Doc. 25). The motion has been fully briefed
by the parties, and the Court heard oral arguments on July
16, 2018. For the reasons stated below, the Magistrate Judge
recommends that the District Court enter an ordering granting
GALLC's Motion for Summary Judgment as to Plaintiff's
punitive damages claim only, and denying GALLC's motion
as to the remainder of Plaintiff's claims.
FACTUAL AND PROCEDURAL BACKGROUND
September 8, 2013 Haines was at the Get Air Tucson indoor
trampoline park and performed a move where he flipped
multiple times off of a platform and into a foam pit. (Doc.
12 at 9). Haines “suffered catastrophic injuries from
the maneuver, including fractured cervical vertebrae
resulting in paralysis.” Id. Following this
incident, Haines filed suit in Pima County Superior Court on
September 5, 2014 against the following defendants: Get Air
Tucson, Inc.; Get Air Tucson Trampolines, LLC; Get Air
Management, Inc.; GALLC; Trampoline Parks, LLC; Patti
Goodell; Jacob Goodell; Kiersten Goodell; Scott Goodell; Alan
McEwan Jr.; Val Iverson, individually and as owner or
operator of Trampoline Parks, LLC; Jane and/or John Does #s
1-20; ABC Corporations 1-10; XYZ Partnerships 1-10; and ABC
Limited Liability Corporations (LLCs) 1-10. (Doc. 6 Ex. 1).
Haines alleged claims for negligence, negligent design,
negligence in safety standards, negligent supervision,
negligent hiring and training of personnel, piercing the
corporate veil, and punitive damages. Id.
January 5, 2015, Defendant Get Air Tucson Trampolines, LLC
removed the case to this Court, alleging all parties were
diverse and the amount in controversy exceeded $75, 000.00.
(Doc. 1 at 1-2). Get Air Tucson Trampolines, LLC did not
indicate whether any of the other defendants joined or
consented to the removal.
January 13, 2015, Haines filed a Notice of Filing Amended
Pleading Pursuant to LRCiv 15.1(b), averring that no
defendant had filed an answer to his original Complaint.
(Doc. 8). Haines' First Amended Complaint named Alicia
Durfee and Scott Hansen as additional defendants, and alleged
Durfee was a manager or supervisor at Get Air Tucson, and
Hansen was an employee who was acting as a de facto manager
at the time of Haines' injury. (Doc. 12 at 5-6).
January 23, 2015, Haines filed a Motion to Remand to State
Court. (Doc. 17). Haines alleged two arguments in his motion:
One, the federal court lacked subject matter jurisdiction
because there was not complete diversity among the parties,
and two, removal was procedurally improper because the
removing party did not establish unanimity among all served
defendants for removal. Id. at 1-2. Get Air Tucson
Trampolines, LLC and the Goodell, Durfee, and Hansen
defendants counter argued that Haines' addition of Hansen
and Durfee as parties was a “thinly veiled attempt to
avoid federal jurisdiction.” (Doc. 19 at 1).
oral arguments on the Motion to Remand, the Court granted the
Motion on April 15, 2015 and remanded this matter back to
Pima County Superior Court. (Doc. 31). The Court concluded
that the case was improperly removed to federal court because
all properly served defendants had failed to join or consent
to the removal, and because Haines properly added Hansen and
Durfee as defendants in his FAC, which destroyed the
Court's diversity jurisdiction.
remand, the Plaintiff and several defendants entered into a
settlement agreement. The Superior Court then dismissed the
defendants who were parties to the settlement agreement,
leaving two remaining defendants: GALLC and Quality Foam
& Fiber Products, Inc. (Doc. 32 Ex. 3).
12, 2015 GALLC removed the case to this Court, alleging that
all parties were diverse due to the Superior Court's
dismissal of the non-diverse defendants, and that the amount
in controversy exceeded $75, 000.00. (Doc. 32 at 1-2).
Defendant Quality Foam & Fiber Products, Inc. filed a
notice consenting to and joining in the notice of removal.
(Doc. 35). On July 2, 2015, the Court issued an order
directing the Clerk to reopen the case and to recognize
Plaintiff's Second Amended Complaint (filed in Superior
Court) as the operative complaint in this matter. (Doc. 39).
30, 2015 GALLC filed a Motion to Dismiss for lack of personal
jurisdiction and failure to state a cause of action pursuant
to Fed.R.Civ.P. 8 and Rule 12(b). (Doc. 43). On August 25,
2015 Plaintiff filed a Motion for Leave to Amend Complaint to
add and clarify allegations specific to GALLC, and to add
Pacific Urethanes, LLC as a products liability defendant.
(Doc. 45). On February 8, 2016 the District Court entered an
Order adopting the undersigned's Report and
Recommendation, granting Plaintiff's Motion to Amend and
denying GALLC's Motion to Dismiss as moot. (Doc. 83).
February 8, 2016 Plaintiff filed his Third Amended Complaint
(“TAC”), which named Pacific Urethanes, LLC as an
additional products liability defendant. (Doc. 84). The TAC
also alleged that GALLC developed defective safety rules and
supplied them to Get Air Tucson.
March 1, 2016 GALLC filed a Motion to Dismiss for lack of
personal jurisdiction, arguing that it had not engaged in any
business in Arizona and that there were no facts supporting
general or specific personal jurisdiction over it. (Doc. 97).
On March 31, 2017 the District Court entered an Order
adopting the undersigned's Report and Recommendation and
denying GALLC's Motion to Dismiss. (Doc. 172).
April 15, 2016 Defendant Pacific Urethanes, LLC filed a
Motion to Dismiss for lack of personal jurisdiction. (Doc.
103). On March 21, 2017 the District Court entered an Order
adopting the undersigned's Report and Recommendation and
granting Pacific Urethane's Motion to Dismiss. (Doc.
September 19, 2017 the Court held a Status Conference with
Plaintiff and GALLC to resolve a dispute regarding the
procedural posture of the case. At that time, Plaintiff
believed the case was ready for trial, and GALLC still had
not filed its initial disclosure statement and believed a
discovery schedule needed to be set. Following the status
conference, the undersigned issued a Revised Scheduling
Order. (Doc. 191).
September 27, 2017 the District Court entered an Order
dismissing Pacific Urethanes with prejudice, and on October
11, 2017 the Court entered an Order dismissing Quality Foam
& Fiber with prejudice. (Docs. 193 & 195).
November 3, 2017 Mid-Continent Excess & Surplus Insurance
Company filed a Motion to Intervene. (Doc. 199). On December
8, 2017 Mid-Continent filed a Motion for Leave to File
Complaint in Intervention and Proposed Complaint. (Docs. 210
& 211). Mid-Continent's motion is currently stayed.
(Docs. 213 & 219).
April 16, 2018 GALLC filed its first Motion for Summary
Judgment. (Doc. 238).
judgment is appropriate when the “pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(c). A material fact is one that
might affect the outcome of the case under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In addition, a “genuine” issue means that
a reasonable jury could find in favor of the non-moving
party. Id. Thus, “there is no issue for trial
unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.”
Id. at 249.
a party moving for summary judgment has the burden of showing
there are no genuine issues of material fact and it is
entitled to summary judgment as a matter of law.”
National Bank of Arizona v. Thruston, 218 Ariz. 112,
114-15 (App. 2008). “Only if the moving party satisfies
this burden will the party opposing the motion be required to
come forward with evidence establishing the existence of a
genuine issue of material fact that must be resolved at
trial.” Id. at 115. The non-moving party
“may not rest upon mere allegations or denials of [the
moving party's] pleadings, but . . . must set forth
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) (quoting Fed.R.Civ.P.
burden of persuasion on the summary judgment motion is heavy.
Where the evidence or inferences would permit a jury to
resolve a material issue in favor of either party, summary
judgment is improper.” National Bank of
Arizona, 218 Ariz. at 116 (internal quotations and
citation omitted). In evaluating a motion for summary
judgment, the Court must make all inferences in the light
most favorable to the non-moving party. Anderson,
477 U.S. at 255. Finally, “at the summary judgment
stage the judge's function is not himself to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”
Anderson, 477 U.S at 249; see also Musick v.
Burke, 913 F.2d 1390, 1394 (9th Cir. 1990) (court may
not make credibility determinations or weigh conflicting
MOTION TO DISMISS
contends that it is not liable to Plaintiff because:
1) assuming, for purposes of this motion and for purposes of
this motion only, that GALLC owed a duty, and that
plaintiff's expert's opinion is admissible, his
opinion, that the rule that he alleges should have been in
the employee handbook (EH) is, in fact, in the EH on the page
the rules appear; 2) GALLC owed plaintiff no duty; 3) the
GALLC employee involved with the creation of the EH has been
dismissed with prejudice and under Arizona law, GALLC no
longer has any potential legal liability; 4) there is no
causal connection ...