1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Kevin H Rindlisbacher, et al., No. CV-18-01131-PHX-MTL
10 Plaintiffs, ORDER
11 v.
12 Steinway Incorporated,
13 Defendant. 14 15 The Court has reviewed the parties’ briefing on Defendant’s motion for summary 16 judgment on liability (Docs. 205, 217, and 227). In the motion, Defendant seeks summary 17 judgment on multiple theories, one of which is statute of limitations. In support of this 18 argument, Defendant argues that Plaintiffs discovered all factual predicates to their claims 19 long enough ago that by the time the Complaint in this case was filed, the statute of 20 limitations had expired. Specifically, Defendant identifies two theories of 21 misrepresentation/fraud1 that Defendant argues are the totality of the factual predicates for 22 Plaintiffs’ claims. (Doc. 205 at 6-9). Defendant refers to these factual predicates as 23 1 The Court is aware that the parties dispute whether Plaintiffs’ claims are claims for fraud 24 verses negligent misrepresentation. (See Doc. 205 at 6). This Order does not decide that issue. The parties also dispute whether this issue was already decided by the Order on the 25 motion to dismiss. (Compare Doc. 74 (ruling on motion to dismiss); Doc. 101 (granting reconsideration); Doc. 107 (withdrawing order granting reconsideration); Doc. 113 (again 26 granting reconsideration of Doc. 74) with Doc. 227 at 3 (discussing whether this issue is resolved by the law of the case doctrine)). This Order also does not decide that issue. 27 Further complicating matters is the fact that the Order on the motion to dismiss discussed the Second Amended Complaint and the Third Amended Complaint (Doc. 74 n.1), whereas 28 the currently pending motions for summary judgment address the Fourth Amended Complaint. 1 “historical sales” and “challenges with ASU.” (Id.) Plaintiffs respond to the motion for 2 summary judgment and identify 14 separate factual predicates (by way of affirmative 3 statements or omissions) that form the basis for their claims.2 (Doc. 217). None of these 4 statements or omissions involve the “challenges with ASU” because Plaintiffs concede that 5 any statements or omissions about this issue are barred by the statute of limitations. (Id. at 6 15 n7.) Thus, the motion and response only overlap as to one alleged 7 representation/omission. Presumably as a result of the parties’ significant disagreement 8 regarding the factual predicates that underlie Plaintiffs’ claims in this case, in the Reply, 9 Defendant raises several arguments that go beyond a statute of limitations analysis. 10 First, Defendant states, “In a belated effort to avoid dismissal, Plaintiffs create 11 entirely new allegations about alleged omissions that were not pled in any of their five 12 complaints…. The new allegations are now untimely.” (Doc. 227 at 5) (emphasis added). 13 Defendant cites nothing for this legal argument. Thus, by “untimely,” the Court is unclear 14 if Defendant is arguing that these allegedly new factual predicates are untimely under the 15 statute of limitations, untimely based on the disclosure timelines in this case (Doc. 4),3 or 16 some other legal theory of untimeliness. 17 Second, Defendant states, “Steinway did not discuss these alleged omissions in its 18 Motion because they have never been alleged in any of Plaintiffs’ five complaints.” (Doc. 19 227 at 6) (emphasis omitted). Again, Defendant cites nothing for this legal argument. The 20 Court assumes this is an argument as to the sufficiency of the pleadings; and more 21 particularly whether every factual predicate of a claim must be pleaded as a separate count 22 or claim, when the legal theory under which the factual predicate lies was sufficiently 23 pleaded to survive a motion to dismiss.4
24 2 By numbering, there are 15, but Plaintiffs skipped the number 5. 3 See generally IceMos v. Omron, CV 17-2575-PHX-JAT, Doc. 485 at 4-11 (D. Ariz. May 25 18, 2020) (discussing the MIDP disclosure obligations). 4 See generally Coleman v. Quaker Oats, 232 F. 3d 1271, 1292 (9th 2000) (discussing new 26 legal theories raised for the first time at summary judgment). Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (discussing new factual contentions raised 27 for the first time at summary judgment); Pena v. Taylor Farms Pac., Inc., No. 2:13-CV- 01282-KJM-AC, 2014 WL 1330754, at *5(E.D. Cal. Mar. 28, 2014) (discussing both); 28 Pesci v. McDonald, No. 5:15-CV-00607-SVW-E, 2015 WL 12672094, at *11 (C.D. Cal. Oct. 22, 2015) (considering at summary judgment factual predicates not raised in the 1 Third, Defendant states, “Plaintiffs…assert [as] alleged [misrepresentations or 2 omissions] [communications that were] internal to Sherman Clay…which [Plaintiffs] 3 insinuate are attributable to Steinway.” (Doc. 217 at 4). They are not. Sherman Clay was a 4 Steinway dealer; Steinway was not privy to internal Sherman Clay discussions or 5 considerations about exiting the Maricopa County market.” (Doc. 227 at 5-6 n.6). 6 Defendant offers no cite to any factual support regarding its access to or knowledge of 7 Sherman Clay’s internal communications. Further, Defendant did not cite any legal 8 authority for what appears to be an argument premised on agency (or lack thereof) law. 9 Fourth, presumably because of the foregoing three arguments, Defendant does not 10 undertake a statute of limitations analysis for each of Plaintiffs’ 13 allegedly new factual 11 predicates for their claims. Defendant, as noted below, repeatedly argues that failure to 12 address a claim or theory results in waiver. Thus, presumably, Defendant is waiving its 13 statute of limitations argument as to all but the “historical sales” if the Court does not 14 preclude these factual predicates. 15 Fifth, Defendant argues Plaintiffs waived certain claims by use of “incorporation by 16 reference.” Specifically, Defendant argues: 17 Plaintiffs do not even address Steinway’s arguments related to the lack of a confidential relationship between the parties, except through improper 18 “incorporation by reference.” They have an obligation to address all of Steinway’s arguments directly in their Response; in failing to do so, they 19 have waived any argument….See LRCiv. 56.1; D’Agnese v. Novartis Pharm. Corp., 952 F. Supp. 2d 880, 885 (D. Ariz. 2013) (disregarding cross- 20 references, noting “this attempt to incorporate various documents by reference that include arguments related and unrelated to the current issues 21 before the Court circumvents this Court’s local rules governing page limits.”). Plaintiffs waive any arguments by failing to raise them in the 22 Response. 23 (Doc. 227 at 2, 9). 24 Defendant’s primary support for this argument is D’Agnese. D’Agnese was 25 transferred to the District of Arizona for trial out of a Multi-District Litigation (“MDL”) 26 proceeding. In D’Agnese, the trial Judge repeatedly chastised Plaintiffs’ counsel for 27 attempting to “incorporate by reference” documents that were both not in the trial court’s 28 complaint, but disclosed during discovery). 1 record (because such documents were only in the MDL record) and related to other MDL 2 plaintiffs who were not the Plaintiffs in D’Agnese. Specifically, the court held, 3 “Accordingly, the Court has not considered any of the oppositions that Plaintiffs attempted 4 to ‘incorporate by reference’ that were filed in the MDL…. [In other words,] the Court has 5 not considered any responses, statements of fact, or evidence that is not in its Record.” 6 D’Agnese v. Novartis Pharm. Corp., 952 F. Supp. 2d 880, 885-86 (D. Ariz.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Kevin H Rindlisbacher, et al., No. CV-18-01131-PHX-MTL
10 Plaintiffs, ORDER
11 v.
12 Steinway Incorporated,
13 Defendant. 14 15 The Court has reviewed the parties’ briefing on Defendant’s motion for summary 16 judgment on liability (Docs. 205, 217, and 227). In the motion, Defendant seeks summary 17 judgment on multiple theories, one of which is statute of limitations. In support of this 18 argument, Defendant argues that Plaintiffs discovered all factual predicates to their claims 19 long enough ago that by the time the Complaint in this case was filed, the statute of 20 limitations had expired. Specifically, Defendant identifies two theories of 21 misrepresentation/fraud1 that Defendant argues are the totality of the factual predicates for 22 Plaintiffs’ claims. (Doc. 205 at 6-9). Defendant refers to these factual predicates as 23 1 The Court is aware that the parties dispute whether Plaintiffs’ claims are claims for fraud 24 verses negligent misrepresentation. (See Doc. 205 at 6). This Order does not decide that issue. The parties also dispute whether this issue was already decided by the Order on the 25 motion to dismiss. (Compare Doc. 74 (ruling on motion to dismiss); Doc. 101 (granting reconsideration); Doc. 107 (withdrawing order granting reconsideration); Doc. 113 (again 26 granting reconsideration of Doc. 74) with Doc. 227 at 3 (discussing whether this issue is resolved by the law of the case doctrine)). This Order also does not decide that issue. 27 Further complicating matters is the fact that the Order on the motion to dismiss discussed the Second Amended Complaint and the Third Amended Complaint (Doc. 74 n.1), whereas 28 the currently pending motions for summary judgment address the Fourth Amended Complaint. 1 “historical sales” and “challenges with ASU.” (Id.) Plaintiffs respond to the motion for 2 summary judgment and identify 14 separate factual predicates (by way of affirmative 3 statements or omissions) that form the basis for their claims.2 (Doc. 217). None of these 4 statements or omissions involve the “challenges with ASU” because Plaintiffs concede that 5 any statements or omissions about this issue are barred by the statute of limitations. (Id. at 6 15 n7.) Thus, the motion and response only overlap as to one alleged 7 representation/omission. Presumably as a result of the parties’ significant disagreement 8 regarding the factual predicates that underlie Plaintiffs’ claims in this case, in the Reply, 9 Defendant raises several arguments that go beyond a statute of limitations analysis. 10 First, Defendant states, “In a belated effort to avoid dismissal, Plaintiffs create 11 entirely new allegations about alleged omissions that were not pled in any of their five 12 complaints…. The new allegations are now untimely.” (Doc. 227 at 5) (emphasis added). 13 Defendant cites nothing for this legal argument. Thus, by “untimely,” the Court is unclear 14 if Defendant is arguing that these allegedly new factual predicates are untimely under the 15 statute of limitations, untimely based on the disclosure timelines in this case (Doc. 4),3 or 16 some other legal theory of untimeliness. 17 Second, Defendant states, “Steinway did not discuss these alleged omissions in its 18 Motion because they have never been alleged in any of Plaintiffs’ five complaints.” (Doc. 19 227 at 6) (emphasis omitted). Again, Defendant cites nothing for this legal argument. The 20 Court assumes this is an argument as to the sufficiency of the pleadings; and more 21 particularly whether every factual predicate of a claim must be pleaded as a separate count 22 or claim, when the legal theory under which the factual predicate lies was sufficiently 23 pleaded to survive a motion to dismiss.4
24 2 By numbering, there are 15, but Plaintiffs skipped the number 5. 3 See generally IceMos v. Omron, CV 17-2575-PHX-JAT, Doc. 485 at 4-11 (D. Ariz. May 25 18, 2020) (discussing the MIDP disclosure obligations). 4 See generally Coleman v. Quaker Oats, 232 F. 3d 1271, 1292 (9th 2000) (discussing new 26 legal theories raised for the first time at summary judgment). Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (discussing new factual contentions raised 27 for the first time at summary judgment); Pena v. Taylor Farms Pac., Inc., No. 2:13-CV- 01282-KJM-AC, 2014 WL 1330754, at *5(E.D. Cal. Mar. 28, 2014) (discussing both); 28 Pesci v. McDonald, No. 5:15-CV-00607-SVW-E, 2015 WL 12672094, at *11 (C.D. Cal. Oct. 22, 2015) (considering at summary judgment factual predicates not raised in the 1 Third, Defendant states, “Plaintiffs…assert [as] alleged [misrepresentations or 2 omissions] [communications that were] internal to Sherman Clay…which [Plaintiffs] 3 insinuate are attributable to Steinway.” (Doc. 217 at 4). They are not. Sherman Clay was a 4 Steinway dealer; Steinway was not privy to internal Sherman Clay discussions or 5 considerations about exiting the Maricopa County market.” (Doc. 227 at 5-6 n.6). 6 Defendant offers no cite to any factual support regarding its access to or knowledge of 7 Sherman Clay’s internal communications. Further, Defendant did not cite any legal 8 authority for what appears to be an argument premised on agency (or lack thereof) law. 9 Fourth, presumably because of the foregoing three arguments, Defendant does not 10 undertake a statute of limitations analysis for each of Plaintiffs’ 13 allegedly new factual 11 predicates for their claims. Defendant, as noted below, repeatedly argues that failure to 12 address a claim or theory results in waiver. Thus, presumably, Defendant is waiving its 13 statute of limitations argument as to all but the “historical sales” if the Court does not 14 preclude these factual predicates. 15 Fifth, Defendant argues Plaintiffs waived certain claims by use of “incorporation by 16 reference.” Specifically, Defendant argues: 17 Plaintiffs do not even address Steinway’s arguments related to the lack of a confidential relationship between the parties, except through improper 18 “incorporation by reference.” They have an obligation to address all of Steinway’s arguments directly in their Response; in failing to do so, they 19 have waived any argument….See LRCiv. 56.1; D’Agnese v. Novartis Pharm. Corp., 952 F. Supp. 2d 880, 885 (D. Ariz. 2013) (disregarding cross- 20 references, noting “this attempt to incorporate various documents by reference that include arguments related and unrelated to the current issues 21 before the Court circumvents this Court’s local rules governing page limits.”). Plaintiffs waive any arguments by failing to raise them in the 22 Response. 23 (Doc. 227 at 2, 9). 24 Defendant’s primary support for this argument is D’Agnese. D’Agnese was 25 transferred to the District of Arizona for trial out of a Multi-District Litigation (“MDL”) 26 proceeding. In D’Agnese, the trial Judge repeatedly chastised Plaintiffs’ counsel for 27 attempting to “incorporate by reference” documents that were both not in the trial court’s 28 complaint, but disclosed during discovery). 1 record (because such documents were only in the MDL record) and related to other MDL 2 plaintiffs who were not the Plaintiffs in D’Agnese. Specifically, the court held, 3 “Accordingly, the Court has not considered any of the oppositions that Plaintiffs attempted 4 to ‘incorporate by reference’ that were filed in the MDL…. [In other words,] the Court has 5 not considered any responses, statements of fact, or evidence that is not in its Record.” 6 D’Agnese v. Novartis Pharm. Corp., 952 F. Supp. 2d 880, 885-86 (D. Ariz. 2013) 7 (emphasis added). Thus, while the D’Agnese court noted that incorporating oppositions to 8 motions and statements of fact that were filed in other cases also ran afoul of the Local 9 Rules on page limits, the court only refused to consider arguments and exhibits that were 10 not in the record before the court and instead “incorporated by reference” for the Court to 11 go find itself. Id. and n. 3 (“According to Plaintiffs’ own representations, they have 12 attempted to incorporate by reference, without limitation [regarding to which MDL 13 plaintiff the documents relate], 2085 pages that are not in this Court’s Record.”). 14 Thus, the holding of D’Agnese offers no support for Defendant’s argument in this 15 case that Plaintiffs’ attempt to incorporate by reference a cross-motion for summary 16 judgment pending in this case on the exact same topic constitutes waiver. To the extent 17 Defendant continues to press that Plaintiff’s incorporation by reference effectively amounts 18 to an unauthorized expansion of the page limits, Defendant will be permitted to file a 19 supplement brief as a result of this Order, so it too will receive additional pages. Moreover, 20 to the extent Defendant wishes to further argue that Plaintiffs have received an 21 unauthorized expansion of the page limits, Defendant shall cite authority supporting the 22 contention that the remedy for violating the page limits is waiver of arguments. 23 Sixth, Defendant argues without citation that Plaintiffs waived certain claims by not 24 addressing them in response to Defendant’s motion. “Plaintiffs’ alternative claim is for 25 nondisclosure under Restatement Section 551(2)(b)….Plaintiffs make no arguments 26 relating to this claim – not even by improperly attempting to incorporate arguments from 27 other motions by reference – and have therefore waived it.” (Doc. 227 at 10). If Defendant 28 seeks to have this Court grant summary judgment as a sanction for Plaintiffs’ failure to 1) respond, it must cite appropriate authority.> 2 Based on all of the foregoing, the Court will allow each party to file a supplement || brief to more fully develop and/or respond to these arguments. Each party is cautioned that 4|| the Court is not their research assistant. Counsel is responsible for citing the law or facts 5 || to support each argument. Accordingly, 6 IT IS ORDERED that Plaintiffs and Defendant may each file a supplemental brief on the topics raised in the Reply (Doc. 227) and discussed herein, not to exceed 12 pages.° 8 || Defendant’s brief is due by August 7, 2020. Plaintiffs’ brief is due by August 14, 2020. 9|| The parties should not expect any extensions of these deadlines. 10 Dated this 31st day of July, 2020. 11 Wichad T. gibuade Michael T. Liburdi 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 > Compare Jenkins y. County of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) (findin certain claims abandoned by not including them in response to summary judgment) with Heinemann y. Satterberg, 731 F.3d 914, 517 (9th Cir. 2013) (prohibiting the granting of 27 summary judgment as a sanction for not responding) and Brydges v. Lewis, 18 F.3d 651 28|| fespond after the district court warned plaintiff of this potential cohsequence). 6 The parties may not file supplemental statements of facts or any additional exhibits.
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