Salt River Project Agricultural Improvement and Power District v. Trench France SAS et al

Filing 60

ORDER denying 59 Motion for Reconsideration. Signed by Judge David G Campbell on 12/22/2017.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Salt River Project Agricultural Improvement
and Power District,

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Plaintiff,

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No. CV-17-01468-PHX-DGC
ORDER

v.
Trench France SAS, et al.,
Defendant.

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Defendants Trench Limited and Trench France, S.A.S. move for reconsideration

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of this Court’s order denying their Rule 12(b)(2) motion as to Plaintiff’s failure to warn

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claims. Doc. 59. A motion for reconsideration will be denied “absent a showing of

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manifest error or a showing of new facts or legal authority that could not have been

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brought to [the Court’s] attention earlier with reasonable diligence.” LRCiv 7.2(g)(1);

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see Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003).

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The Court’s order found that Defendants’ forum-related contacts gave rise to

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Plaintiff’s failure to warn claims, but not to its manufacturing and design defect claims.

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Doc. 56 at 7. Defendants make three arguments.

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For the first time in their motion for reconsideration, Defendants contend that a

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negligence-based continuing duty to warn exists only if the product was defective at the

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time of sale. Doc. 59 at 4. The Arizona case on which Defendants rely defined the

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continuing duty as an “obligation imposed where a manufacturer or seller, believing that

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it has sold a non-defective product, subsequently learns that its product was, in fact,

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defective when placed in the stream of commerce.” Wilson v. U.S. Elevator Corp., 972

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P.2d 235, 240 (Ariz. Ct. App. 1998) (emphasis in original) (quoting Lynch v. McStome

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and Lincoln Plaza Assocs., 548 A.2d 1276, 1281 (Pa. 1988)). Plaintiff in this case

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alleges that the product in question was defective at the time of sale. Doc. 1, ¶ 26. Yet

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Defendants appear to argue that because the Court found that it had no personal

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jurisdiction over the manufacturing and design defect claims – claims that arise at the

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time of sale – it cannot have jurisdiction over the negligent failure to warn claim.

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Doc. 59 at 5. But the Court cannot agree with Defendants’ suggestion that a negligent

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failure to warn claim arises at the time of sale and that personal jurisdiction must also be

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determined at that point. True, the defective in question must have existed at the time of

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sale, but Wilson states that the duty to warn “arises only when a manufacturer . . .

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subsequently learns” that its product is defective. 972 P.2d at 239. The claim appears to

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accrue when the manufacturer later learns of the defect. In this case, Defendants’ 2010-

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2014 contacts with Arizona provide a basis for personal jurisdiction over the negligent

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failure to warn claim because Plaintiff alleges that Defendants knew of their product’s

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defect during the time of those contacts. See Doc. I, ¶¶ 26-29.

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Also for the first time in this motion, Defendants contend that the reasoning in

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Powers v. Taser International, Inc., 174 P.3d 398 (Ariz. Ct. App. 2007), “is inconsistent

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with the existence of a post-sale duty to warn in the context of a strict liability claim.”

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Do. 59 at 6. Powers held that a strict liability duty to warn attaches where, at the time of

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sale, the manufacturer “knew or should have known that the [product] was unreasonably

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dangerous unless accompanied by an adequate warning.” Powers, 174 P.3d at 784. As

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noted above, reconsideration will not be granted on the basis of legal authority that could

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not have been brought to the Court’s attention earlier with reasonable diligence. LRCiv

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7.2(g)(1). Clearly, Defendants’ argument based on Powers could have been made earlier.

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In addition, even if it is true that Defendants’ strict liability duty to warn arose at the time

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of sale because Defendants knew or should have known that the product was

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unreasonably dangerous, Plaintiff alleges that Defendants failed to discharge this duty

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when they made contacts with Arizona in 2010-2014. Defendants eventually may be able

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to argue that any such claim is time-barred, but the claim is based on what Defendants

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failed to do in 2010-2014, when the Court found they had sufficient contacts for personal

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jurisdiction in Arizona.

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Finally, Defendants make a public policy argument, but acknowledge that the

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Court previously rejected the argument. Doc. 59 at 7. The Court will not reconsider the

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same argument. United States v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998).

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IT IS ORDERED that the motion for reconsideration (Doc. 59) is denied.

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Dated this 22nd day of December, 2017.

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