Weinstein v. Meritor, Inc.

• Court: District Court, D. Nevada
• Decided: March 3, 2020
• Docket: 2:16-cv-01076
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 M. Paul Weinstein, Case No.: 2:16-cv-01076-JAD-VCF 4 Plaintiff Order (1) Denying Weinstein’s Motion for Partial Summary Judgment, 5 v. (2) Granting Meritor’s Motion for Summary Judgment, (3) Denying 6 Meritor, Inc., Weinstein’s Motion for Reconsideration, (4) Denying Weinstein’s Motion for Leave 7 Defendant to File Reply, (5) Denying Weinstein’s Motion to Strike, and (6) Closingthis Case 8 [ECF Nos.65, 83,124, 127, 129] 9 10 Plaintiff M. Paul Weinstein sues defendant Meritor, Inc. for reneging on an agreement to 11 purchase an anti-corrosion coating product called ZXP3 or NanoWardand then disparaging the 12 product to potential customers. I previously granted Meritor’s motion to dismiss Weinstein’s 13 second amended complaint in part, but gaveWeinstein leave to amend.1 Weinstein’s third 14 amended complaint asserts causes of action for interference with prospective economic 15 advantage, injurious falsehood, breach of contract, promissory estoppel, and violations of the 16 Nevada Deceptive Trade Practices Act (NDTPA).2 Weinstein moves for partial summary 17 judgment on his intentional-interference and injurious-falsehood claims, and Meritor moves for 18 summary judgment on all claims. Weinstein also objects to Magistrate Judge Ferenbach’s 19 rulings denying his motion for a dispositive sanction under Rule 37 against Meritorand to 20 consolidate his motion for sanctions with the summary-judgment motions. Weinstein moves for 21 22 23 1 ECF No. 49. 2 ECF No. 70. 1 leave to file a reply in support of his objectionand to strike Meritor’s response to his motion for 2 leave. 3 The parties are familiar with the facts, and I do not repeat them here except where 4 necessary.3 I deny Weinstein’s summary-judgment motion and grant Meritor’s because 5 Weinstein fails to identify evidence capable of admission at trial to raise a genuine issue of

6 material fact. I overrule Weinstein’s objections to Judge Ferenbach’s order because he fails to 7 identify an error. I deny Weinstein’s motion for leave to file areplyin support of his objections 8 because he has not shown good cause to do so. And I deny Weinstein’s motion to strike 9 Meritor’s response to his motion for leave because Meritor is entitled to file a response to his 10 motion. 11 Discussion 12 I. Motions for summary judgment [ECF Nos. 65, 83] 13 The principal purpose of the summary-judgment procedure is to isolate and dispose of 14 factually unsupported claims or defenses.4 The moving party bears the initial responsibility of

15 presenting the basis for its motion and identifying theportions of the record or affidavits that 16 demonstrate the absence of a genuine issue of material fact.5 If the moving party satisfies its 17 burden with a properly supported motion, the burden then shifts to the opposing party to present 18 specific facts that show a genuine issue for trial.6 “When simultaneous cross-motions for 19 summary judgment on the same claim are before the court, the court must consider the 20 21 3 I incorporate herein the facts detailed in my prior order. ECF No. 49. 22 4 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 5 Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). 23 6 Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986); Auvil v. CBS 60 Minutes,67 F.3d 816, 819 (9th Cir. 1995). 1 appropriate evidentiary material identified and submitted in support of”—and against—“both 2 motions before ruling on each of them.”7 3 A. Intentional interference with prospective economic advantage 4 Weinstein alleges that Meritor intentionally interfered with his business relationships 5 with other potential purchasers of NanoWard, including Centric Parts, Bendix, UQuality,

6 Peterbilt, Blue Bird Bus, and First Student, by refusing to validate NanoWard.8 Meritor argues it 7 could not have interfered becauseopportunities arenot cognizable business expectancies, there is 8 no evidence showing that Meritor had the requisite intent, and Weinstein’s alleged damages are 9 speculative.9 10 Under Michigan law,10 interference with prospective economic advantage requires proof 11 of: “(1) the existence of a valid business relationship or expectancy; (2) knowledge of the 12 relationship or expectancy by the defendant; (3) intentional interference by the defendant which 13 induces or causes a breach or termination of the relationship or expectancy; and (4) damage to 14 the plaintiff.”11 A “valid business expectancy” is more than a “subjective expectation of entering

15 16 7 Tulalip Tribes of Washington v. Washington, 783 F.3d 1151, 1156 (9th Cir. 2015) (citing Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two,249 F.3d 1132, 1134 (9th Cir. 2001)). 17 8 Weinsteinasserts in his third amended complaint that Meritor interfered with his business relationships with third-parties, but he appears to argue in his motion for partial summary 18 judgment that Meritor interfered with Weinstein’s business relationship with Meritor. Compare ECF No. 70 with ECF No. 65 at 17–18. Weinstein later appears to abandon that argument, but to 19 the extent he claims that Meritor interfered with Weinstein’s relationship with Meritor, that claim fails as a matter of law. See, e.g.,Reed v. Michigan Metro Girl Scout Council, 506 N.W.2d 231, 20 233 (Mich. App. 1993) (“To maintain a cause of action for tortious interference, the plaintiffs must establish that the defendant was a ‘third party’ to the contract or business relationship.”). 21 9 ECF Nos. 65 at 15–24; 83 at 8–15. 22 10 I previously ruled that Michigan law applies to Weinstein’s tort-and contract-based claims, ECF No. 49 at 6–8, and the parties both apply Michigan law in their briefs. 23 11 Stromback v. New Line Cinema, 384 F.3d 283, 306 (6th Cir. 2004) (quoting BPS Clinical Labs. v. Blue Cross & Blue Shield of Mich., 552 N.W.2d 919, 925 (Mich. App. 1996). 1 into a business relationship.”12 “The expectancy must be a reasonable likelihood or probability, 2 not mere wishful thinking.”13 For example, one district court applying Michigan law held that a 3 plaintiff did not have a valid business expectancy in an agreement to negotiate a series of 4 agreements that were themselves subject to multiple approvals and contingencies.14 5 Weinstein’s proffered business opportunities are either speculative or irrelevant.

6 Weinstein only had “preliminary discussions”—consisting of phone calls and a single meeting— 7 with UQuality and Centric Parts, and Weinstein never discussed specific terms with either 8 company.15 With respect to Bendix, the only evidence in the record is an email from Weinstein 9 to Bendix responding to Bendix’s purported interest in NanoWard.16 Weinstein does not cite to 10 evidence in support of his assertion that he had a valid business expectancy with Peterbilt.17 11 Blue Bird and First Student either tested or expressedinterest in ZXP3, but through Meritor and 12 only in 2010, well before the alleged interference in 2014 and 2015.18 Because a reasonable jury 13 could not find that Weinstein had anything more than a subjective expectation of a business 14 relationshipat the time of Meritor’s alleged interference, no genuine issue of fact remains for

15 16 12 Saab Auto. AB v. Gen. Motors Co., 953 F. Supp. 2d 782, 789 (E.D. Mich. 2013), aff’d, 770 F.3d 436 (6th Cir. 2014) (quotation and alterations omitted). 17 13 Id. 18 14 Id. 15 ECF Nos. 65-1 at 12; 83-2 at 13–17. Weinstein states in his declaration that Centric Parts’s 19 CEO offered to purchase NanoWard on the condition that Meritor confirmedthat it didn’t own the formula, but Meritor objects under Rule 56(c)(2) to considerationof this testimony as 20 hearsay. ECF Nos. 65-3 at 14, 76 at 16, 83 at 12. Weinstein does not argue a hearsay exception applies or that he could present this evidence in admissible form at trial. ECF Nos. 80; 86 at 9. 21 Because I do not perceive a path to admissibility for this evidence, I sustain Meritor’s objection and do not consider it. 22 16 ECF No. 86-1 at 88. 23 17 ECF No. 86 at 9. 18 ECF No. 86-1 at 35–36. 1 trial on Weinstein’s intentional-interference claim.19 So I grant Meritor’s motion for summary 2 judgment on this claim. 3 B. Injurious falsehood 4 Weinstein alleges that Meritor told Centric Parts and others that NanoWard failed 5 Meritor’s tests.20 Meritor argues that the only evidence of these statements is inadmissible

6 hearsay, there is no evidence of causation, and Weinstein’s damages are speculative.21 7 In Michigan, an injurious-falsehood claim requires proof “(1) that the defendant 8 published a false statement to a third party knowing that statement to be false (or acting in 9 reckless disregard for its truth or falsity); (2) that the defendant knew, or should have known, that 10 this false publication would likely result in pecuniary loss or in harm to interests of the plaintiff 11 having a pecuniary value; and (3) that the plaintiff suffered special damages as a result.”22 12 Because injurious falsehood requires a false statement to a third party, false intracorporate 13 communications do not give rise to an injurious-falsehoodclaim under Michigan law.23 14 Weinstein devotes much of his briefs to purportedly false statements made within

15 Meritor,24 but such intracorporate communications cannot give rise to an injurious-falsehood 16 19 I need not and do not address Meritor’s other arguments for summary judgment. 17 20 ECF No. 70 at ¶ 132. 18 21 ECF Nos. 76 at 25–28; 83 at 25–29. 19 22 Neshewat v. Salem, 173 F.3d 357, 364 (6th Cir. 1999). 23 See Bay City-Abrahams Bros. v. Estee Lauder, Inc., 375 F. Supp. 1206, 1213 (S.D.N.Y. 1974) 20 (predicting Michigan law) (“At best, the facts alleged would reveal only the existence of certain of defendants's intracorporate communications and certain other conflicting communications 21 between defendant and plaintiff. Such fact, if proved, would not suffice to bring defendant’s conduct within the ambit of injurious falsehood.”); see alsoRestatement (Second) of Torts 22 §623A cmt. e (1977) (“The statement that contains the injurious falsehood must be published to a third party.”). 23 24 ECF No. 86 at 12–14. Weinstein speculates that these emails may have been blind-copied to other companies in the industry but offers no evidence for his assertion. 1 claim. With respect to cognizable statements made toa third-party, Weinstein offers his 2 declaration that Bendixand Blue Birdexecutives told him that “the word was out”about 3 NanoWard’s failed testing.25 Weinstein also points to Zane McCarthy’s declaration that Centric 4 Parts and First Student had told him the same.26 Meritor objects under Rule 56(c)(2) to 5 consideration of these statements because they are inadmissible hearsay.27 Weinstein does not

6 argue in response that the statements are subject to a hearsay exception or that he could present 7 this evidence in an admissible form at trial.28 Weinstein states that McCarthy could testify at 8 trial, but the hearsay problem would remain.29 So I sustain Meritor’s objection. Because there is 9 no evidenceof a false statement in the recordcapable of admission at trial, no genuine issue of 10 fact remains as to Weinstein’s injurious-falsehood claim.30 So I grant Meritor’s motion for 11 summary judgment on this claim. 12 C. Breach of contractand promissory estoppel 13 Weinstein alleges that he had two oral contracts and a written requirements contract with 14 Meritor to sell it NanoWard.31 Meritor moves for summary judgment on Weinstein’s breach-of-

15 contract claims, arguing that the oral contracts are barred by the statute of frauds and no written 16 17 18 25 ECF Nos. 65 at 26-27; 65-3 at 18. 26 ECF No. 65-3at 31. 19 27 ECF Nos. 76 at 25-28; 83 at 25–29. 20 28 ECF Nos. 80; 86 at 12–14; see alsoRomero v. Nev. Dep’t of Corr., 673 F. App’x 641, 644 (9th Cir. 2016)(“Although Rule 56 was amended in 2010 to eliminate the unequivocal requirement 21 that evidence submitted at summary judgment must be authenticated, the amended Rule still requires that such evidence would be admissible in evidence at trial.” (quotation omitted)). 22 29 ECF No. 86at 12–13. 23 30 I need not and do not address Meritor’s other arguments for summary judgment. 31 ECF No. 70at ¶¶ 89–116. 1 contract exists.32 Weinstein responds that a promissory-estoppel exception to the statute of 2 frauds applies because Meritor promised to reduce the agreement to writingby issuing 3 electronic-purchase orders.33 Weinstein separately alleges a promissory-estoppel claim premised 4 on Meritor’s promise to issue electronicpurchase orders.34 Meritor responds that Weinstein’s 5 estoppel arguments must fail because Weinstein did not reasonably rely on Meritor’s alleged

6 promise.35 7 Michigan’s statute of frauds generally requires any contract for the sale of goods 8 over $1,000 tobe in writing to be enforceable.36 But Michigan courts have recognized an 9 estoppel exception to the statute of frauds when a party has promised to put an agreement in 10 writing.37 To invoke the estoppel exceptionas well as his separate claim for promissory 11 estoppel, Weinstein must prove“(1) a promise (2) that the promisor should reasonably have 12 expected to induce action of a definite and substantial character on the part of the promisee and 13 (3) that, in fact, produced reliance or forbearance of that nature (4) in circumstances requiring 14

15 16 17 32 ECF No. 83 at 16–23. 18 33 ECF No. 86 at 10–11. 19 34 ECF No. 70 at ¶ 118. 20 35 ECF Nos. 83 at 17–19, 23-24; 94 at 6–8. 36 Mich. Comp. Laws § 440.2201. 21 37 See Metro. Alloys Corp. v. Considar Metal Mktg., Inc., 615 F. Supp. 2d 589, 595 (E.D. Mich. 2009) (explaining that the statute of frauds does not bar a breach-of-contract claim when the 22 defendant promised a forthcoming written confirmation of an oral contract); Fairway Mach. Sales Co. v. Contl. Motors Corp.,198 N.W.2d 757, 758 (Mich. App. 1972) (finding genuine 23 issues of material fact regarding the existence of a contract when a defendant accepted a deal and promised to put it into writing). 1 enforcement of the promise if injustice is to be avoided.”38 “[T]he reliance interest protected by 2 [promissory estoppel] is reasonable reliance.”39 3 Weinstein’s estoppel defense to the statute of frauds and promissory-estoppel claim are 4 both premised on Meritor’s alleged promise to issue electronic purchase orders for ZXP3.40 But 5 Weinstein also must prove reasonable reliance on that promise. Even though Weinstein provides

6 evidence that he took a number of actions in reliance on the promise,41 his admissions suggest 7 that his reliance was not reasonable. In his deposition, Weinstein admittedthat no contract is 8 entered until “[t]hat point in time comes when they enter an [electronic-purchase order]. There is 9 no contract until –and we always understood, until purchasing sends you an [electronic-purchase 10 order], you have no deal.”42 Weinstein similarly testified that “[t]here’s no sense” in buying raw 11 materials until receipt of an electronic purchase order, explaining that he wouldn’t “want to take 12 that much of a risk.”43 Because Weinstein’s actions taken in reliance on Meritor’s alleged 13 promise are equallyconsistent with strategic business decisions to obtain a contract with Meritor, 14 no reasonable jury could find that this was the kind of reasonable reliance interest protected by

15 promissory estoppel. Because no genuine issue of fact remains as to Weinstein’s reasonable 16 reliance, Weinstein cannot avoid the statute-of-frauds defense to his breach-of-oral-contract 17 18 38 Zaremba Equip., Inc. v. Harco Nat’l Ins. Co., 761 N.W.2d 151, 166(Mich. App. 2008);see 19 also Auto. Interior Innovations, LLC v. Mata AHSAP VE OTOMOTIV TIC SAN AS,No. 13-CV- 12542, 2015 WL 4162489, at *16 (E.D. Mich. July 9, 2015)(requiring proof of promissory 20 estoppel to invoke estoppel exception to statute of frauds). 21 39 State Bank of Standish v. Curry, 500 N.W.2d 104, 107 (Mich. 1993). 40 ECF No. 70 at ¶¶ 90, 118. 22 41 ECF No. 86-1 at 70–71. 23 42 ECF No. 83-2 at 29. 43 Id. at 43. 1 claim and cannot establish his promissory-estoppel claim. So I grant Meritor’s motion for 2 summary judgment on those claims. 3 For his breach-of-written-contract claim, Weinstein alleges that the representations and 4 agreements contained in the parties’ emails and other communications comprisea written 5 requirements contract.44 But Weinstein disavowed that he was pursuing a requirements contract

6 claim in his deposition.45 And rather than identify the emails or other documents comprising the 7 contract, Weinstein explains that defendants have failed to produce them.46 Because there is no 8 genuine issue of fact as to the existence of a written contract, I grant Meritor’s motion for 9 summary judgment on Weinstein’s breach-of-written-contract claim. 10 D. NDTPA 11 Weinstein alleges that Meritor violated Nevada Revised Statutes § 598.0915(15)’s 12 prohibition of “knowingly mak[ing] any . . . false representation[s] in a transaction.”47 13 Weinstein specifies two sets ofpurportedly false representations: (1)statements misrepresenting 14 Meritor’s intention to issue electronicpurchase orders; and (2)statements misrepresenting the

15 test protocol to be used for testing ZXP3.48 Meritor moves for summary judgment on these 16 claims, but Weinstein does not respond.49 I grant Meritor’s motion because: (1)Weinstein’s lack 17 of response leaves him without a genuine issue on this claim50; (2) Weinstein concedes that the 18 44 ECF No. 70 at ¶¶ 105–106. 19 45 ECF No. 83-2 at 44–45. 20 46 ECF No. 86 at 11–12. 21 47 ECF No. 70 at ¶¶ 134–141. 48 Id. at ¶¶ 135, 137. 22 49 ECF Nos. 83 at 28–30; ECF No. 86. 23 50 The failure to oppose a motion for summary judgment does not permit the court to enter summary judgment by default, but the lack of a response is not without consequences. Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013). As Rule 56(e) explains, “If a party 1 individuals he accuses of making false representations regarding Meritor’s intent to issue 2 electronic-purchase orders were not lying, so no genuine issue of fact remains as to whether they 3 had therequisite intent51; and (3) Weinstein does not raise a genuine issue of fact as to whether 4 the purported misrepresentations regarding the test protocol caused his damages.52 5 E. Rule 56(d)

6 Weinsteindevotes much of his reply in support of his summary-judgment motion and 7 opposition to Meritor’s summary-judgment motionto Meritor’s failure to produce documents in 8 discovery.53 To the extent Weinstein raises Rule 56(d), it falls flat because he fails to show by 9 affidavit or declaration that he cannot present facts essential to justify his opposition to 10 Weinstein’s summary-judgment motion, as is required to obtain relief under the rule54 11 II. Objections to Judge Ferenbach’s rulings [ECF No. 124] 12 Faced with Meritor’s arguments in opposition to his motion for summary judgment, 13 Weinstein filed a motion for dispositive sanctions under Rule 37concurrently with his reply.55 14 Weinstein later moved to consolidate his motion for dispositive sanctions with his summary-

15 judgment motionfor a hearing before me.56 Magistrate Judge Ferenbach denied Weinstein’s 16 17 fails . . . to properly address another party’s assertion of fact . . . the court may . . . consider the 18 fact undisputed for purposes of the motion” and “grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is 19 entitled to it . . . .” Fed. R. Civ. P. 56(e)(2) & (3); Heinemann, 731 F.3d at 917. 51 ECF No. 83-2 at 21–22. 20 52 Picus v. Wal-Mart Stores, Inc., 256 F.R.D. 651, 657 (D. Nev. 2009) (NDTPA has acausation 21 requirement). 53 ECF Nos. 80; 86at 2–4, 14–15. 22 54 Fed. R. Civ. P. 56(d). 23 55 ECF No. 81. 56 ECF Nos. 110; 119. 1 motions in a hearing.57 Weinstein now objects on various grounds.58 After recountingthe 2 standard for reviewing a magistrate judge’s order, I address each objectionin turn. 3 When a litigant challenges a magistrate judge’s ruling on a pretrial matter like this one, 4 he must show that the “order is clearly erroneous or contrary to law.”59 The objecting party 5 “must file and serve specific written objections” within “14 days after service of the order.”60

6 “Replies will be allowed only with leave of the court.”61 “The district judge may affirm, reverse, 7 or modify in whole or in part, the magistrate judge’s order” or “remand the matter to the 8 magistrate judge with instructions.”62 9 Weinstein first objects that Judge Ferenbach erred by denying his request to consolidate 10 his motions for sanctions with the summary-judgment motions before me because he requested 11 dispositive sanctions.63 Under this district’s local rules, “[a]magistrate judge may hear and 12 finally determine any pretrial matter not specifically enumerated as an exception in 28 U.S.C. 13 §636(b)(1)(A).”64 A motion for sanctions under Rule 37 is not one of the eight motions 14 enumeratedin §636(b)(1)(A).65 And I will not deem Weinstein’s discovery motion a dispositive

15 one merely because it seeks dispositive sanctions; to do sowould allow litigants to undermine 16 17 18 57 ECF Nos. 122; 123. 58 ECF No. 124. 19 59 28 U.S.C. § 636(b)(1)(A); LR IB 3-1(a). 20 60 LR IB 3-1(a). 21 61 Id. 62 LR IB 3-1(b). 22 63 ECF No. 124 at 5–10. 23 64 LR IB 1-3. 65 28 U.S.C. §636(b)(1)(A). 1 the division of labor between district judges and magistrate judges by including meritless 2 requests for dispositive sanctions in theirdiscovery motions. So I overrule this objection. 3 Weinstein next objects that Judge Ferenbach erred by stating that Rule 37 sanctions may 4 only be issued after violation of a prior discovery order because Rule 37(c) provides for “self- 5 executing”sanctions.66 Rule 37(b)(2) authorizes sanctions for “fail[ing] to obey an order to

6 provide or permit discovery.”67 In the hearing on Weinstein’s motion, Judge Ferenbach stated 7 that “Rule 37, you know, the sanctions, particularly Rule 37(b)(2) says sanctions sought in a 8 District Court where the action is pending for not obeying a discovery order. That’s the first 9 thing that’s required for these type ofsanctions . . . .”68 But Judge Ferebach was responding to 10 Weinstein’s argument that Meritor failed to producedocuments during discovery, thus 11 implicating Rule 37(b)(2).69 Because the context and Judge Ferenbach’s statement itself make 12 clear that he was referring to Rule 37(b)(2), I overrule Weinstein’s objection on this ground. 13 Weinstein also objects that Judge Ferenbach erred by denyinghis motion forsanctions 14 under Rule 37(c).70 Rule 37(c)(1) excludes information orwitnesses not disclosed underRule

15 26(a) or (e) unless the failure was substantially justified or is harmless.71 Rule 37(c)(1)(C) 16 authorizes other appropriate sanctions for violations, including dispositive sanctions.72 17 Weinstein argues that Meritor’s disclosures were deficient because they were servedalmost three 18 19 66 ECF No. 124 at 10–13. 20 67 Fed. R. Civ. P. 37(b)(2)(A). 21 68 ECF No. 123 at 32. 69 Id. at 31. 22 70 ECF No. 124 at 11–13; 15–16. 23 71 Fed. R. Civ. P. 37(c)(1). 72 Fed. R. Civ. P. 37(c)(1)(C). 1 months lateand unaccompanied by documents.73 But Rule 26 allows a party to satisfy its initial- 2 disclosureobligations by including“a description by category and location” ofrelevant 3 documents.74 And Meritor’s delay was substantially justified by its pending motion for 4 judgment on the pleadings and expectation that Weinstein would file an amended complaint. 5 Weinstein’s own delay in objecting to Meritor’s delayed disclosures suggests that Meritor’s

6 delay was also harmless. A minor discovery violation that occurred over threeyears ago—and 7 that Weinstein did not object tountil faced with Meritor’s opposition to his motion for summary 8 judgment—does not merit dispositive sanctions. So I overrule Weinstein’s objection on this 9 ground. 10 Weinstein also objects that Judge Ferenbach erred by denying his motion for sanctions 11 under Rule 37(e).75 Rule 37(e) authorizes sanctions for failure to preserve electronically stored 12 information. Weinstein argues that Meritor failed to preserve former Meritor employee David 13 Casteel’s documents, but Meritor provides evidence that it preserved and searchedCasteel’s hard 14 drive and documents.76 So I overrule Weinstein’s objection on this ground.

15 Weinstein also objects that Judge Ferenbach failed to make credibility determinations and 16 was biased in favor of Meritor.77 In contrast to Rule 72(b)’s requirement that a magistrate judge 17 makefindings of fact on dispositive matters,Rule 72(a) does not require a magistrate judge to 18 make specific findings on nondispositive matters.78 And “[i]nthe absence of any evidence of 19 20 73 ECF Nos. 81-1 at 3–4; 124 at 11. 21 74 Fed. R. Civ. P. 26(a)(1)(A)(ii). 75 ECF No. 124 at 16–20. 22 76 ECF No. 88-1 at ¶ 8. 23 77 ECF No. 124 at 20–24. 78 Fed. R. Civ. P. 72. 1 some extrajudicial source of bias or partiality, neither adverse rulings nor impatient remarks are 2 generally sufficient to overcome the presumption of judicial integrity, even if those remarks are 3 critical or disapproving of, or even hostile to, counsel, the parties, or their cases.”79 Judge 4 Ferenbach was not requited to make formal credibility determinations. And having reviewed 5 Judge Ferenbach’s orders and the transcripts of the underlying hearings, I find that Weinstein’s

6 perceivedbias amounts to—at most—adverse rulings and impatient remarks. So I overrule 7 Weinstein’s objections on thesegrounds. 8 III. Motions for leave to file reply and to strike[ECF Nos. 127, 129] 9 Weinstein moves for leave to file a reply in support of his objections in order to respond 10 to Meritor’s “nonresponsivearguments, misstatements of fact, and personal attacks.”80 Meritor 11 responds that Weinstein does not demonstrate good cause and Weinstein’s proposed reply 12 rehashes his arguments on the merits of his motion.81 Weinstein moves to strike Meritor’s 13 responses as noncompliant with the local rules.82 14 This district’s local rules provide that replies in support of objections to a Magistrate

15 Judge’s order “will be allowed only with leave of the court.”83 The local rules also afford14 16 days after service of a motion to “file and serve any points and authorities in response to the 17 motion.”84 Having reviewed Weinstein’s proposed reply, I deny Weinstein’s motion for leave to 18 file it because I find that thearguments have been fully developed in the initial briefing before 19 20 79 Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008)(quotation omitted). 21 80 ECF No. 127. 81 ECF No. 128. 22 82 ECF No. 129. 23 83 LR IB 3-1(a). 84 LR 7-2(b). Judge Ferenbach and the briefing before me. I deny Weinstein’s motion to strike Meritor’s 2|| response because Meritor was entitled to file it. 3 Conclusion 4 Accordingly, IT IS HEREBY ORDERED that Weinstein’s motion for partial summary 5|| judgment [ECF No. 65] is DENIED and Meritor’s motion for summary judgment [ECF No. 83] GRANTED. I grant summary judgment in favor of Meritor on all claims. So, with good cause appearing and no reason for delay, the Clerk of Court is directed to ENTER FINAL 8] JUDGMENT in favor of Meritor, Inc. and against M. Paul Weinstein. 9 IT IS FURTHER ORDERED that Weinstein’s objections to Magistrate Judge Ferenbach’s rulings [ECF No. 124] are OVERRULED. 11 IT IS FURTHER ORDERED that Weinstein’s motion for leave to file a reply [ECF 12}| No. 127] is DENIED. 13 IT IS FURTHER ORDERED that Weinstein’s motion to strike [ECF No. 129] is 14] DENIED. 15 IT IS FURTHER ORDERED that the Clerk of Court is directed to CLOSE THIS 16|| CASE. 17 Dated: March 3, 2020

U.S) rict ude Jenifer A. Dorsey 19 20 21 22 23