Académique Documents
Professionnel Documents
Culture Documents
Lewallen (013592)
1 E-Mail: Lisa@LewallenLaw.com
Lisa G. Lewallen, PLLC
2 P O Box 33430
Phoenix, Arizona 85067
3 602-314-6996
4 Attorney for Defendant Spartan Motors, Inc. and its subsidiary
Spartan Chassis, Inc.
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE DISTRICT OF ARIZONA
9
10 Case No.: CV05-2046-PHX-ROS
11
12
SPARTAN’S RESPONSE TO
13 PLAINTIFFS’ OBJECTION TO
SPARTAN’S PROPOSED
14 JUDGMENT
15
16
17
18
19
20 Defendant Spartan (“Spartan”) requests this Court sign its proposed form of
21
judgment because: (1) there are no remaining claims against Spartan in this case; and
22
23 (2) Spartan is entitled to certification under Rule 54(b).
3 By:__s/Lisa G. Lewallen
Lisa G. Lewallen
4 Attorney for Defendant Spartan Motors
14
Spartan’s favor was appropriate because expert witness opinion testimony was
15
16 required to sustain any of the claims Plaintiffs sought to bring against Spartan,
17
regardless of whether the Court ultimately decided that New Mexico or Arizona law
18
would apply to the substantive issues in this case. Spartan incorporates herein by
19
20 this reference the arguments contained in its response to Plaintiff’s motion for
21
reconsideration that reject Plaintiff’s new theory. Summary judgment is still
22
26 The general principles regarding Rule 54(b) and its application are essentially
27
undisputed: “When more than one claim for relief is presented in an action, or when
28
2
1 multiple parties are involved, entry of final judgment as to one or more but fewer
2 than all of the claims or parties is appropriate ‘only if the court expressly determines
3
that there is no just reason for delay.’” Amor v. State of Arizona, 2009 WL 529523 (D.
4
5 Ariz) (q uoting Federal Rule of Civil Procedure 54(b)). Judgments under the rule are
6
reserved for cases where the costs and risks of multiple proceedings and appeals are
7
8 outbalanced by the “pressing needs of the litigants for an early and separate
9
judgment as to some claims or parties.” Id. (quoting Frank Briscoe Co. v. Morrison-
10
11 Knudsen Co., 776 F.2d 1414, 1416 (9th Cir.1985) (other citations omitted)).
12
In this case, Spartan freely acknowledges it has the burden of establishing the
13
14 propriety of Rule 54(b) certification, id. (citing Braswell Shipyards, Inc. v. Beazer E., Inc.,
15
2 F.3d 1331, 1335 (4th Cir.1993), a burden Spartan believes it has met. To this end, the
16
17 Court first must determine whether its decision is final. Id. A judgment is “‘final” if
18
it is “an ultimate disposition of an individual claim entered in the course of a
19
20 multiple claims action.” Braswell, supra (citing Curtiss-Wright Corp. v. Gen. Electric Co,
21 446 U.S. 1, 7-8, 100 S.Ct. 1460, 1464-65 64 L.Ed.2d 1 (1980) (quoting Sears, Roebuck &
22
Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 900 (1956)). Here, there can be no
23
24 reasonable dispute that the Court’s entry of summary judgment in Spartan’s favor is
25
a final decision. It ends the litigation entirely against Spartan.
26
27 Next, the Court must assure itself that Rule 54(b) language is appropriate by
28
3
1 accounting for the administrative interests of the judicial system as well as the
2 equities involved to make sure that the federal policy against piecemeal appeals is
3
served. Id. (citing Curtiss-Wright, supra., 446 U.S. at 7-9, 100 S.Ct. at 1460)). Whether
4
5 Spartan’s claims are separable from the others remaining in the case, and whether the
6
nature of the claims already determined vis-à-vis Spartan are such that no appellate
7
8 court would have to decide the same ones again should also be considered. Id (citing
9
Curtiss-Wright, 446 U.S. at 9). Where there are similar legal and factual issues
10
11 between the parties' claims, a Rule 54(b) order is generally disfavored unless where
12
necessary to avoid a harsh and unjust result. Id. (citing Gregorian v. Izvestia, 871 F.2d
13
18
Spartan for the negligent selection of a Goodyear tire for its motor coach. The only
19
20 “live” claims the Plaintiffs may assert against Goodyear are a product liability failure
21 to warn claim and a negligent design claim that Goodyear’s tire was defective and
22
unreasonably dangerous. The type of evidence needed to establish a negligence
23
24 claim against Spartan is different in kind than that needed to establish the product
25
liability claims against Goodyear. In other words, the claims the Plaintiffs are
26
27 asserting against Spartan are “separable” from those it is bringing against Goodyear,
28
4
1 and an appellate court would not be hearing an appeal (assuming, arguendo, that
2 Goodyear were to appeal a judgment or final order) regarding the same or similar
3
legal and/or factual issues between the parties. Amor, supra, (citing Curtiss-Wright,
4
11 four years; more than 650 pleadings or other papers have been filed with the Court;
12
Spartan has taken, defended, or attended countless depositions of fact and expert
13
14 witnesses. With the Court’s grant of partial summary judgment, we all know now
15
that Spartan never should have been included in this litigation because the Plaintiffs
16
17 did not have a claim against them. Spartan has had to endure this frivolous litigation
18
for four years, and it would be a harsh and unjust result to require them to wait any
19
21 The court of appeals for the Ninth Circuit reached this same result in
22
Continental Airlines, Inc. v. Goodyear Tire and Rubber Co., 819 F.2d 1519 (9th Cir. 1987).
23
24 There, Rule 54(b) language was proper in a case involving a serious airline accident.
25
An exculpatory clause in the sales contract between Continental and the aircraft's
26
27 manufacturer barred certain of the airline's claims against the manufacturer as well
28
5
1 as various suppliers of the aircraft's component parts (including tire companies),
2 including claims for negligence and strict liability theories. The judgment did not
3
affect the airline's potential recovery against any defendant for passenger
4
5 indemnification, nor the airline's fraud and breach-of-warranty claims against the
6
manufacturer based on the complete loss of the airplane. On appeal, the court held
7
8 that the matters disposed of by partial summary judgment were severable factually
9
and legally from the remaining claims such that Rule 54(b) language was
10
11 appropriate.
12
Spartan has met its burden of demonstrating its entitlement to the Rule 54(b)
13
14 language contained in its proposed form of judgment. The facts and legal theories in
15
this case are severable and different. And Spartan is entitled to finality in this
16
17 litigation after the extensive cost incurred in defending a meritless lawsuit. Because
18
there is no “just” reason to delay certification of this judgment in Spartan’s favor,
19
20 Spartan respectfully requests that the Court forthwith enter judgment pursuant to
21 Rule 54(b).
22
23
26
6
1 By:_ s/Lisa G. Lewallen_____________________
Lisa G. Lewallen, Esq.
2 Attorney for Spartan Motors
3
4
CERTIFICATE OF SERVICE
5
6 I hereby certify that on April 27th, 2009, I electronically transmitted the attached
document to the Clerk’s Office using the CM/ECF System for filing and transmittal of
7 a Notice of Electronic Filing to the following CM/ECF registrants:
8 David L. Kurtz, Esq.
The Kurtz Law Firm
9 7420 E. Pinnacle Peak Road, Suite D-128
Scottsdale, AZ 85255
10 Attorneys for Plaintiffs Haeger
11 Blanca Quintero, Esq.
Cozen O’Connor
12 501 W. Broadway, Suite 1610
San Diego, CA 92101
13 Attorneys for Plaintiff Farmers Insurance
Company of Arizona
14
23 s/L. G. Lewallen
24
25
26
27
28