Russell v. OneWest Bank FSB et al

Filing 34

ORDER denying 33 Motion for Reconsideration. Signed by Judge Frederick J Martone on 11/15/2011.(KAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas E. Russell,
Plaintiff,

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vs.

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OneWest Bank, et al.,
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Defendants.
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No. CV 11-01463-PHX-FJM
ORDER

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We have before us plaintiff's motion to reconsider (doc. 33). In our October 20, 2011

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order (doc. 30), we dismissed all of plaintiff's claims except those against defendant Fairway

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Independent Mortgage Company. Under LRCiv 7.2(g), a court should deny a motion for

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reconsideration "absent a showing of manifest error or a showing of new facts or legal

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authority that could not have been brought to its attention earlier with reasonable diligence."

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Plaintiff claims that we incorrectly interpreted Verde Water & Power Co. v. Salt River

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Valley Water Users' Ass'n, 22 Ariz. 305, 197 P. 227 (1921). However, plaintiff fails to cite

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any legal authority suggesting that this precedent has been overturned. See also Eason v.

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IndyMac Bank, FSB, No. CV 09-1423-PHX-JAT, 2010 WL 4573270, at *2 (D. Ariz. Nov.

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5, 2010) (rejecting a similar argument). Similarly, plaintiff provides no authority that Farrell

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v. West, 57 Ariz. 490, 114 P.2d 910 (1941) has been overruled, and therefore gives us no

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reason to reconsider our decision.

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Plaintiff asserted a claim for breach of good faith and fair dealing, expressly arising

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out of contractual obligations in the deed of trust and the note. We dismissed this claim

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because defendant OneWest Bank, FSB ("OneWest") was not a party to either contract.

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Plaintiff's contention that bad faith is a tort, and that OneWest was part of a joint venture,

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fails, among other things, to respond to the fundamental reality that the covenant of good

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faith and fair dealing is inherent in a contract, absent which there is no such covenant.

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A.R.S. § 33-420 provides a cause of action against "[a] person purporting to claim an

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interest in, or a lien or encumbrance against, real property," who falsely records a document

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asserting such a claim. Plaintiff's motion for reconsideration contends that the assignment

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of the deed of trust asserts an interest in real property, and relies on briefs recently filed in

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another case. This does not meet the standard to grant a motion for reconsideration.

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The Restatement (Second) of Torts § 323 (1965) mentions physical harm only. The

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Arizona Supreme Court recognizes that there is no "general duty to exercise reasonable care

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for the purely economic well-being of others, as distinguished from their physical safety or

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the physical safety of their property." Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266,

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268, 229 P.3d 1008, 1010 (2010). Since the Arizona Supreme Court has not extended the

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Good Samaritan doctrine to purely economic harm, no binding authority exists to suggest

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otherwise.

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Accordingly, IT IS ORDERED DENYING plaintiff's motion for reconsideration.
(Doc. 33).
DATED this 15th day of November, 2011.

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