Guadiana v. State Farm Fire and Casualty Company

Filing 287

ORDER ADOPTING REPORT AND RECOMMENDATIONS 266 , 270 , and 285 . It is ordered denying 246 Defendant s Motion for Summary Judgment, 248 Defendant's Motion to Decertify Class, and 276 Plaintiff's Motion for Final Judgment. This case is deemed ready for trial. Joint Proposed Pretrial Order due by 1/30/2015. Pretrial Conference set for 3/12/2015 at 10:00 AM before Senior Judge Frank R Zapata. Signed by Senior Judge Frank R Zapata on 12/30/14. (See attached PDF for complete information.) (KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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State Farm Fire and Casualty Company, )
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Defendant.
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Rosemary Guadiana,

No. 07-326-TUC-FRZ
ORDER

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Plaintiff Rosemary Guadiana filed this class action for coverage under her

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homeowner’s insurance policy with Defendant State Farm Fire and Casualty Company,

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alleging Defendant breached the policy by failing to pay the costs incurred in tearing out and

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replacing the part of the structure necessary to replace the polybutylene (“PB”) piping after

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Plaintiff sustained water damage caused by a leak in the PB plumbing system in her home.

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Pending before the Court for consideration are Defendant’s Motion for Summary

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Judgment (Doc. 246) and Motion to Decertify Class (Doc. 248).

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Also reflected as pending is Defendant’s Objections to the Magistrate Judge’s Order

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Denying State Farm’s Motion to Exclude the Testimony of Daniel Johnston (Doc. 250) and

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Plaintiff’s Motion for Final Judgment (Doc. 276).

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This matter is referred to Magistrate Judge Leslie A. Bowman for all pretrial

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proceedings and report and recommendation in accordance with the provisions of 28 U.S.C.

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§ 636(b)(1) and LRCiv 72.1 and LRCiv 72.2 of the Rules of Practice of the United States

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District Court for the District of Arizona.

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Magistrate Judge Bowman issued a Report and Recommendation (Doc. 266) on

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February 19, 2014, recommending that the Defendant’s motion for summary judgment be

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denied, finding that the evidence is such that a reasonable trier of fact could find for the

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Plaintiff, and that a question of material fact exists regarding whether Defendant’s were

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required to completely replace the polybutylene piping in Plaintiff’s home.

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Magistrate Judge Bowman further issued a Report and Recommendation (Doc. 270)

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on March 13, 2014, recommending this Court deny Defendant’s motion to decertify the class

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pursuant to Rule 23, Fed.R.Civ.P., finding that the Court carefully considered the nature of

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the damages each class member might have suffered based on Plaintiff’s breach of contract

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theory and that such damages suffered by the class members stem directly from Defendant’s

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alleged breach, finding the Supreme Court decision, Comcast Corp. v. Behrend, 133 S.Ct.

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1426 (2013), upon which Defendant bases its argument to revisit the issue of class

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certification, inapposite.

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The Reports and Recommendations provide a thorough analysis of the facts and issues

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presented and the applicable legal standards under the Federal Rules of Civil Procedure in

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reviewing a motion for summary judgment pursuant to Rule 56, and in considering class

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certification pursuant to Rule 23(a) and (b)(2) and (3). Also set forth by Magistrate Judge

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Bowman in the Reports and Recommendations at bar is the procedural background of this

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case, including the Court’s previous denials of Defendant’s motion to dismiss, initial motion

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for summary judgment, the denial of Plaintiff’s original motion to certify a nationwide class,

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the granting of Plaintiff’s second motion for Arizona-only class certification and the partial

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granting of Plaintiff’s request for summary judgment.

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The Court, after considering all matters presented, including the motions, responses

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in opposition, replies, the Reports and Recommendations, objections, responses and replies

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thereto, shall accept as the findings of fact and conclusions of law the Reports and

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Recommendations of the Magistrate Judge.

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The Court finds the Report and Recommendation of the Magistrate Judge to deny

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Defendant’s motion to decertify the class well reasoned and further finds no basis to disturb

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the Court’s ruling regarding Arizona class certification set forth in its Order adopting the

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Report and Recommendation of Magistrate Judge Edmonds and thereby granting Plaintiffs’

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Motion for Certification of an Arizona-Only Class. (Doc. 145)1 The Court’s ruling on

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Plaintiff’s Motion for Class Certification of an Arizona-Only Class was issued upon review

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of all matters presented, including the objections to the Report and Recommendation (Doc.

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139) and the objections, responses and reply thereto.

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In regard to Defendant’s Objections to the Magistrate Judge’s Order Denying State

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Farm’s Motion to Exclude the Testimony of Daniel Johnston, in which Defendant “submits

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that the Court should set aside the Magistrate Judge’s Order as clearly erroneous and contrary

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to law under Rule 72(a) and should grant State Farm’s motion to exclude the testimony of

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Daniel Johnston in its entirely,” the Court finds, following review of Defendant’s objection,

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and the response, reply and surreply thereto, that Magistrate Judge Bowman did not err, nor

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is there any legal basis to set aside the Order (Doc. 249) denying Defendant’s motion to

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exclude the testimony of Plaintiff’s expert witness, Daniel Johnston.

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The Court, also having reviewed the November 3, 2014 Report and Recommendation

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issued by Judge Bowman on Plaintiff Motion for Final Judgment (Doc. 285), to which no

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objections have been filed, shall adopt and accept the recommendation to deny Plaintiff’s

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request for an entry of final judgment.

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Based on the foregoing and upon consideration of all matters presented,

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IT IS HEREBY ORDERED that Magistrate Judge Bowman’s Report and

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Recommendation (Doc. 266) is hereby ACCEPTED and ADOPTED as the findings of fact

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and conclusions of law by this Court; accordingly

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IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment
(Doc. 246) is DENIED;

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The United States Court of Appeals for the Ninth Circuit denied Defendant’s petition
for permission to appeal this Court’s March 31, 2011order granting class action certification.
(Doc. 160).
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IT IS FURTHER ORDERED that Magistrate Judge Bowman’s Report and

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Recommendation (Doc. 270) is hereby ACCEPTED and ADOPTED as the findings of fact

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and conclusions of law by this Court; accordingly

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IT IS FURTHER ORDERED that Defendant’s Motion to Decertify Class (Doc.
248) is DENIED;

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IT IS FURTHER ORDERED that Defendant’s Objections to the Magistrate Judge’s

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Order Denying State Farm’s Motion to Exclude the Testimony of Daniel Johnston (Doc. 250)

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are considered and the Magistrate Judge’s Order is affirmed;

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IT IS FURTHER ORDERED that Magistrate Judge Bowman’s Report and

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Recommendation (Doc. 285) is hereby ACCEPTED and ADOPTED as the findings of fact

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and conclusions of law by this Court; accordingly

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IT IS FURTHER ORDERED Plaintiff’s Motion for Final Judgment (Doc. 276) is
DENIED;

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IT IS FURTHER ORDERED that this case is deemed ready for trial.

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IT IS FURTHER ORDERED that the reference to Magistrate Judge Bowman is

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hereby withdrawn.

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IT IS FURTHER ORDERED that a Pretrial Conference is set for Thursday,
March 12, 2015 at 10:00 a.m.

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IT IS FURTHER ORDERED that the parties shall file a proposed Joint Pretrial

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Order on or before January 30, 2015, which shall include, but not be limited to, that

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prescribed in the form of Joint Pretrial Order attached;

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IT IS FURTHER ORDERED that any motions in limine shall be filed on or before

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January 30, 2015, the date for filing the proposed Joint Pretrial Order; any response shall

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be filed within 10 days of the filing date of a motion. Motions in limine and responses

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thereto are limited to five (5) pages. No replies are permitted.

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IT IS FURTHER ORDERED that a firm trial date shall be set at the Pretrial

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Conference;

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....
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IT IS FURTHER ORDERED that the parties shall file a Request for Pretrial

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Settlement Conference, if they wish to pursue settlement, at which time this matter will be

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referred to Honorable Bruce G. Macdonald, United States Magistrate Judge, for impartial

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settlement negotiations.

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DATED this 30th day of December, 2014.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff(s),

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vs.

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Defendant(s).

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No. CV *-*-TUC-FRZ
PROPOSED JOINT PRETRIAL ORDER

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The following is the proposed Joint Pretrial Order which shall, upon approval of the
Court, become the Final Pretrial Order.

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I.

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IDENTIFICATION OF PARTIES AND COUNSEL

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II.

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STATEMENT OF JURISDICTION

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Briefly state the facts and cite the statutes which give this Court jurisdiction.

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III.

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NATURE OF ACTION

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Provide a concise statement of the cause of action, and the relief sought.

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IV.

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STIPULATIONS AND UNCONTESTED FACTS

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V.

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CONTESTED ISSUES OF FACT

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The following are issues of fact to be tried and determined upon trial. Each issue of

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fact must be stated separately and in specific terms, followed by the parties' contentions as

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to each issue.

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Issue:
Plaintiff(s) contends:
Defendant(s) contends:

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VI.

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RELEVANT UNCONTESTED ISSUES OF LAW

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(i.e. burdens of proof; standards of review)

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VII.

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RELEVANT UNCONTESTED ISSUES OF LAW

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The following are issues of law to be tried and determined upon trial. Each issue of

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law must be stated separately and in specific terms, followed by the parties' contentions as

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to each issue.

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Issue:
Plaintiff(s) contends:
Defendant(s) contends:

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VIII.

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LIST OF WITNESSES

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Each party shall provide a list of witnesses intended to be called at trial. Each

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witness shall be indicated as either fact or expert. A brief statement as to the testimony of

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each expert witness shall also be included.

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IX.

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LIST OF EXHIBITS

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Each party shall provide a list of numbered exhibits.

A statement of either

UNCONTESTED or CONTESTED shall follow each listed exhibit.
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If contested, a brief statement of the objection by the opposing party shall follow the
listed exhibit.

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X.

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LIST OF DEPOSITIONS

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Portions of depositions that will be read at trial must be listed by page and line

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number. A statement of either UNCONTESTED or CONTESTED shall follow. If

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contested, a brief statement of the objection by the opposing party shall follow the listed

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portion of the deposition to be offered.
XI. MOTIONS IN LIMINE

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Plaintiff(s) have filed the following Motions in Limine:

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Defendant(s) have filed the following Motions in Limine:

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XII. JURY TRIAL or BENCH TRIAL

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For a Jury Trial

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Trial briefs (only upon request of the Court), proposed voir dire, interrogatories to the

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jury, stipulated jury instructions and instructions which are not agreed upon, shall be filed

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10 days prior to Trial.
For a Bench Trial

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Trial briefs (only upon request of the Court), shall be filed 10 days prior to Trial.

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Parties are referred to LRCiv 52.1 regarding the filing of proposed findings of fact and

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conclusions of law.

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XIII. PROBABLE LENGTH OF TRIAL

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CERTIFICATION

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The undersigned counsel for each of the parties in this action do hereby approve and
certify the form and content of this proposed Joint Pretrial Order.

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Attorney for the Plaintiff(s)

Attorney for the Defendant(s)
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This proposed Joint Pretrial Order is hereby approved as the Final Pretrial Order on

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this

day of

, 2015.

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Frank R. Zapata
United States District Judge

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