Free Response to Motion - District Court of Arizona - Arizona

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THE CAVANAGH LAW FIRM
A Professional Association 1850 NORTH CENTRAL AVENUE SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

Kerry M. Griggs, SBN 016519 [email protected] Patrick G. Rowe, SBN 018591 [email protected] Attorneys for Defendant Fleetwood Motor Homes of California, Inc. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA LANE SENNETT, Plaintiff, NO. CV04 0161 PHX ROS DEFENDANT FLEETWOOD'S RESPONSE TO PLAINTIFF'S RULE 56(F) MOTION TO STAY FLEETWOOD'S MOTION FOR SUMMARY JUDGMENT RELATIVE TO THIS COURT'S ORDER OF FEBRUARY 24, 2005 (ORAL ARGUMENT REQUESTED)

FLEETWOOD MOTOR HOMES OF CALIFORNIA, INC., and WORKHORSE CUSTOM CHASSIS, Defendants.

Defendant Fleetwood Motor Homes of California, Inc. ("Fleetwood"), by and through undersigned counsel, respectfully submits this Response to Plaintiff's Rule 56(f) Motion To Stay Defendant Fleetwood's Motion for Summary Judgment Relative to This Court's Order of February 24, 2005. Fleetwood has complied with the Court's February 24, 2005 Order by producing to Plaintiff the only operative agreement between Fleetwood and co-Defendant Workhorse Custom Chassis ("Workhorse"). Plaintiff's counsel continues to ask for agreements that do not exist. Fleetwood wrote a letter to Plaintiff's counsel on October 6, 2005, requesting Plaintiff to withdraw his Rule 56(f) Motion. See, October 6, 2005 correspondence from Kerry M. Griggs, Esq., to Marshall Meyers, Esq., attached
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hereto as Exhibit 1. The parties have continued to try to reach a compromise to avoid troubling the Court with this matter. However, it appears as though they have reached an impasse. As of the time of the filing of this Response, Plaintiff refused to withdraw the Motion. Fleetwood, therefore, has not choice but to submit this Response. Plaintiff's Motion is moot in view of Fleetwood's confirmations and proposed accommodations that no such agreements exist. Plaintiff also fails to meet the procedural requirements of Rule 56(f), Fed. R. Civ. P., requiring affidavits from Plaintiff stating why she cannot present facts to oppose the Motion for Summary Judgment. In her Rule 56(f) Motion, Plaintiff failed to provide the requisite Rule 56(f) affidavit; therefore, Plaintiff's Rule 56(f) Motion should be denied, and the Court should proceed to rule upon Fleetwood's Motion for Summary Judgment. I. Factual Background In the Rule 56(f) Motion, Plaintiff requests an order allowing Plaintiff to conduct additional discovery into existing agreements between Defendants Fleetwood and Workhorse. Plaintiff also requests all agreements that Fleetwood has with the Recreational Vehicle Industry Association ("RVIA"), and to conduct discovery "into the various issues surrounding these agreements including but not limited to documents exchanged between Defendants, arbitration proceedings to date, 'secret' documents, apportioning of liability, inspection reports resulting from RVIA agreements, subpoenaing RVIA, and a deposition of the person most knowledgeable from each Defendant about the agreements with RVIA." See, Plaintiff's Rule 56(f) Motion, at p. 7, lines 8-17. On February 24, 2005, this Court held a telephonic hearing to resolve discovery disputes among the parties. At that hearing, the Court ruled that the Defendants were required to produce to Plaintiff indemnification agreements that they had entered between one another. See, February 24, 2005 hearing transcript, at p. 53, line 20 ­ p. 55, line 1, attached as Exhibit A to Plaintiff's Rule 56(f) Motion. Plaintiff's counsel narrowed his
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T HE C AVANAGH L AW F IRM , P.A.

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request to agreements only between Fleetwood and Workhorse, so long as they were the only Defendants and there were no other alleged responsible parties. Id. If either

Defendant were to allege that any other manufacturer were responsible for Plaintiff's damages, Defendants were to identify the manufacturer by March 4, 2005. Id. at p. 35, line 8 ­ p. 36, line 18. Neither party identified another responsible manufacturer, and only Fleetwood and Workhorse remain as Defendants. On or before March 4, 2005, Fleetwood produced to Plaintiff's attorney the only operative agreement between Workhorse and Fleetwood, which the parties have identified as the "Converter's Agreement." Fleetwood has complied with the Court's February 24, 2005 Order. Plaintiff now believes that Fleetwood and Workhorse have entered into an arbitration agreement with RVIA and seeks to conduct discovery on this issue. Fleetwood informed Plaintiff on many occasions, including the October 6, 2005 letter attached hereto as Exhibit 1, that no such agreement exists. Moreover, discovery in this matter closed on September 7, 2005,

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pursuant to this Court's Fourth Amended Scheduling Order entered June 17, 2005. Lastly, Fleetwood also offered to provide an affidavit from one of its representatives that it has not entered any RVIA-sponsored arbitration agreement with Workhorse. Fleetwood's offer still stands. II. Legal Background In order to obtain Rule 56(f) relief, the moving party must show as follows: 1. That they have set forth in affidavit form the specific facts that they hope to elicit from further discovery; 2. That the facts sought exist; and 3. That these sought-after facts are "essential" to resist the summary judgment motion. State of California v. Campbell, 138 f.3d 772, 779 (9th Cir. 1998). A. Plaintiff failed to submit an affidavit stating specific facts needed to oppose Fleetwood's Motion for Summary Judgment. See, Exhibit 1.

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In Campbell, the Ninth Circuit Court of Appeals explicitly stated that "references in memoranda and declarations to a need for discovery do not qualify as motions under Rule 56(f)." Id, quoting Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). Plaintiff's Rule 56(f) Motion is not supported by affidavits stating specific facts needed to oppose Fleetwood's Motion for Summary Judgment; rather, Plaintiff's counsel makes unfounded allegations regarding the existence of arbitration agreements. "Failure to comply with Rule 56(f) is a proper ground for denying discovery and proceeding to summary judgment." Brae Transp., 790 F.3d at 1443. Fleetwood requests the Court to deny Plaintiff's Rule 56(f) Motion and proceed to rule upon its Motion for Summary Judgment. B. Fleetwood has offered to provide an affidavit that no RVIA-sponsored arbitration agreement exists between the Defendants. Plaintiff's allegation of such an arbitration agreement between Defendants is pure speculation.

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"Denial of a Rule 56(f) application is proper where it is clear that the evidence sought is almost certainly nonexistent or is the object of pure speculation." Campbell, 138 F.3d at 779-780, quoting Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991). Counsel for Fleetwood has informed Plaintiff's counsel that Fleetwood has not entered into an RVIA-sponsored arbitration agreement with Workhorse, offering to provide an affidavit to this effect. See, Exhibit 1. Fleetwood cannot produce what does not exist. Plaintiff has been repeatedly informed that no such agreement exists and that the request is founded upon pure speculation. Without the proper foundation that any agreement exists,

Plaintiff's request for Rule 56(f) relief fails. C. Fleetwood and Workhorse have already produced their "Converter's Agreement" pursuant to Court Order. The additional discovery sought by Plaintiff regarding arbitration agreements will not show "facts essential" to resist Fleetwood's Motion for Summary Judgment.

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Fleetwood has filed a Motion for Summary Judgment on Plaintiff's claims for the following: 1. 2. 3. 4. 5. 6. Defects related to the chassis which Fleetwood did not manufacture; Breach of Limited Warranty; Diminution in value; Consequential damages; Breach of implied warranties; and Violations of federal statutes and regulations.

See generally, Fleetwood's Motion for Summary Judgment. Allowing Plaintiff to pursue discovery regarding Fleetwood's association with the RVIA, a non-party to this litigation, is irrelevant and will not lead to facts that are essential to resist Fleetwood's pending Motion for Summary Judgment. All relevant agreements between the Defendants have been produced. Evidence of agreements between the RVIA and Fleetwood are not relevant. For example, the existence of such an agreement does not change the fact that Plaintiff cannot present any evidence as to diminution in value of the Plaintiff's motor home because its expert witness, William Trimmell, failed to personally inspect the Plaintiff's motor home. See, Fleetwood's Motion for Summary Judgment, at pp. 9 ­ 10. The discovery requested by Plaintiff in its Rule 56(f) Motion also has no effect on any of the other issues listed above. As Plaintiff's Rule 56(f) Motion fails to request further discovery of facts essential to resisting Fleetwood's Motion for Summary Judgment, the Rule 56(f) Motion should be denied. D. The Defendants do not have an obligation to sue one another and voluntarily shoulder the burden of establishing Plaintiff's prima facie case.

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Plaintiff is apparently disappointed that neither Defendant has filed a cross-claim. Apparently, it is Plaintiff's belief that since the Defendants have not engaged in such crossclaim practice that they are conspiring against Plaintiff. However, Plaintiff has failed to present any legal authority to the Court that the Defendants have an obligation file crossclaims against one another, thereby proving Plaintiff's claims. Plaintiff also has no factual
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evidence to support this claim.

Nevertheless, Plaintiff asks this Court for additional

discovery, with nothing but speculation for support. Also, Plaintiff represented to the Court in the February 24, 2005 hearing that it sought no agreements from additional parties other than the Defendants. See, Plaintiff's Rule 56(f) Motion, at Exhibit A, p. 53, line 20 ­ p. 55, line 1. Now, after the close of discovery and Fleetwood filing its Motion for Summary Judgment, Plaintiff seeks agreements with the RVIA, a non-party that has nothing to do with this case. Plaintiff's requests are also inconsistent with res judicata and normal principles of indemnification between civil defendants. Even if Fleetwood and Workhorse were

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inclined to arbitrate Plaintiff's alleged claims for defects after resolution of this matter, it would not be relevant to or have any effect on Plaintiff's cause of action. Plaintiff has no right to request an alteration of any settlement or verdict obtained in this cause of action based upon an arbitration between Fleetwood and Workhorse occurring after this litigation concludes. Plaintiff is bound by the outcome of this litigation and is not entitled to the proverbial second bite at the apple. III. Plaintiff's Request for Sanctions In spite of Fleetwood's repeated representations that no further relevant agreements exist between the Defendants, Plaintiff filed a Rule 56(f) Motion requesting further discovery on this issue. Fleetwood complied with the Court's February 24, 2005 Order and produced the "Converter's Agreement." Fleetwood offered to provide an affidavit that no other relevant agreements exist between the Defendants. Lastly, Fleetwood wrote

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Plaintiff's counsel asking that the Rule 56(f) Motion be withdrawn prior to drafting this response. Both Fleetwood and Workhorse are entitled to attorneys' fees and costs

associated with drafting any response for this waste of the parties' resources. IV. CONCLUSION For the reasons stated above, Fleetwood respectfully requests this Court deny
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Plaintiff's Rule 56(f) Motion to Stay Defendant Fleetwood's Motion for Summary Judgment Relative to This Court's Order of February 24, 2005. Fleetwood further requests the Court to deny Plaintiff's request for sanctions and to award Fleetwood attorneys' fees and costs incurred in drafting this response. Lastly, Fleetwood requests that the Court proceed to and grant Fleetwood's Motion for Summary Judgment. RESPECTFULLY SUBMITTED this 13th October, 2005. THE CAVANAGH LAW FIRM, P.A.

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By: s/Kerry M. Griggs Kerry M. Griggs Patrick G. Rowe Attorneys for Defendant Fleetwood

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CERTIFICATE OF SERVICE I hereby certify that on October 13, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF Registrants: Marshall Meyers, Esq. Krohn & Moss, Ltd. 111 West Monroe, Suite 711 Phoenix, AZ 85003 Attorneys for Plaintiff Negatu Molla David Williams BOWMAN AND BROOKE, LLP 2901 N. Central Avenue, Suite 1600 Phoenix, AZ 85012-2761 Attorneys for Defendant Workhorse Custom Chassis By: s/Jacque Andersen

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THE CAVANAGH LAW FIRM
A Professional Association

Kerry M. Griggs
(602) 322-4017
Facsimile: (602) 322-4105

E-Mail:

October 6, 2005

[email protected] www.cavanaghlaw.com
File No. 3601-94

Via Facsimile and Email Marshall Meyers, Esq. Krohn & Moss, Ltd. 111 West Monroe, Suite 711 Phoenix, AZ 85003 Re: Dear Marshall: I have received and reviewed your Rule 56(f) Motion to Stay Defendant Fleetwood's Motion for Summary Judgment Relative to this Court's Order of February 24, 2005. We have been down this road before in the Warshauer case regarding your requests for Fleetwood and Workhorse agreements to participate in an RVIA arbitration program. As we informed you in that case, Fleetwood has no agreement with Workhorse to participate in the RVIA arbitration program. Pursuant to Court order, we provided you with the "Converter Agreement" between Fleetwood and Workhorse under protective order on March 4, 2005. This is the written agreement that Fleetwood and Workhorse have entered into. In Warshauer, I offered to provide you an affidavit from a Fleetwood representative confirming that Fleetwood has no agreement with Workhorse to participate in the RVIA arbitration program. I am happy to provide a similar affidavit in this case. I cannot produce a document that does not exist. In Fleetwood's November 29, 2004 Objections and Responses to Plaintiff's Supplemental Interrogatories, No. 5, we responded to your interrogatory regarding indemnification agreements with component manufacturers. At that time, we objected on several grounds, including scope and that the request was not reasonably calculated to lead to the discovery of admissible evidence, but acknowledged that some agreements do exist. Also on November 29, 2004 Fleetwood provided Objections and Responses to Plaintiff's Supplemental Request to Produce. We objected to your request (No. 1) to produce indemnification agreements between Fleetwood and component manufacturers again on several Sennett v. Fleetwood, et al.; CV04-0161-PHX-ROS

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Marshall Meyers, Esq. Krohn & Moss, Ltd. October 6, 2005 Page 2 grounds, including scope and that the request was not reasonably calculated to lead to the discovery of admissible evidence. After the hearing before the Court on February 24, 2005, wherein the Court ordered production of agreements between Workhorse and Fleetwood in spite of our objection that they were not relevant, we fully complied with the Court order and provided the "Converter Agreement" on March 4, 2004. No arbitration agreement exists - there is nothing else. There are no "secret" documents, an apportioning of liability between Workhorse and Fleetwood, arbitration proceedings, or inspection reports resulting from RVIA agreements as suggested on p. 7 of your Rule 56(f) Motion. Also, at the discovery hearing on February 24, 2005, you narrowed your request to only the production of agreements between the Defendants Fleetwood and Chassis, so long as they are the only defendants in the case. See, Transcript of February 24, 2005 telephonic hearing, at. p. 53, l. 20 ­ p. 55, l. 1. Neither Fleetwood nor Workhorse claims that any other manufacturers or entities are responsible for Plaintiff's claimed damages. If any claims were to be made, they were required to have been made by March 4, 2005, at the time the "Converter Agreement" was disclosed. Id. at p. 35, l. 8 ­ p. 36, l. 18. Therefore, your request for Fleetwood's agreements with other parties and the RVIA exceeds the scope of what you were seeking at the February 24, 2005 hearing. In light of all this, I must ask that you withdraw your Rule 56(f) motion, as no RVIA arbitration agreement exists. Your Rule 56(f) Motion and its over broad requests do nothing to promote Ms. Sennett's interests in this matter. You should be aware that I debated whether I should simply respond to your motion. However, as I went through this history, I could only reach the conclusion that it should have never been filed. This is especially true in view of the fact that it also includes a request for sanctions. That cinched it. Please inform me by the close of business tomorrow (10/07/05) whether you will withdraw your motion. Best regards,

Kerry M. Griggs For the Firm KMG:jaa cc: David Williams, Esq. Don Lee, Esq.

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