Flores v. ADT Security Services, Inc et al

Filing 63

ORDER: IT IS ORDERED that Magistrate Judge Edmonds 43 Report and Recommendation is ACCEPTED and ADOPTED. Defendants 20 Motion for Judgment on the Pleadings is GRANTED in part and DENIED in part; Defendants Motion to Stay 21 is DENIED; Plaintiff s 29 Rule 56(f) Motion for Continuance to Permit Additional Discovery is DENIED; Magistrate Judge Edmonds 56 Report and Recommendation is ACCEPTED and ADOPTED; Plaintiffs Motion 27 for Partial Summary Judgment is DENIED; This matter shall proceed on the remaining claims of breach of contract and consumer fraud; This matter is referred back to Magistrate Judge Edmonds for all pretrial proceedings and report and recommendation. Signed by Senior Judge Frank R Zapata on 3/31/11.(BAC)

-GEE Flores v. ADT Security Services, Inc et al

Doc. 63

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pending before the Court for consideration is Defendant's Motion for Judgment on the Pleadings and Plaintiff's Motion for Partial Summary Judgment. This action, originally filed in the Arizona Superior Court in and for the County of Pima and removed to this Court on the jurisdictional basis of diversity, was referred to Magistrate Judge Glenda E. Edmonds for all pretrial proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and LRCiv 72.1 and LRCiv 72.2 of the Rules of Practice of the United States District Court for the District of Arizona, Local Rules of Civil Procedure. Plaintiff Frederick B. Flores filed this action alleging breach of contract, tortious breach of the implied covenant of good faith and fair dealing, negligence, and consumer fraud pursuant to A.R.S. § 44-1522 against Defendant ADT Security Services, Inc. Magistrate Judge Edmonds issued separate Reports and Recommendations as to each of the pending motions. Each Report and Recommendation sets forth a factual and procedural background. vs. ADT Security Services, Inc., Defendant. Frederick B. Flores, Plaintiff, ) ) ) ) ) ) ) ) ) ) No. CV 10-036-TUC-FRZ (GEE) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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I. Defendant's Motion for Judgment on the Pleadings On June 28, 2010, Magistrate Judge Edmonds issued her Report and Recommendation, recommending that the District Court, after its independent review of the record, enter an order granting in part Defendant's Motion for Judgment on the Pleadings, filed pursuant to Rule 12(c), finding that Defendant is entitled to judgment on Plaintiff's claim for tortious breach of the duty of good faith and fair dealing and on Plaintiff's claim for negligence. The Magistrate Judge also recommends that the Court deny both Defendant's Motion to Stay, based on the fact that Defendant's Rule 12(c) motion does not resolve the entire action, and Plaintiff's Rule 56(f) Motion for Continuance to Permit Additional Discovery, on the basis Defendant's Rule 12(c) motion for judgment on the pleadings should not be treated as a motion for summary judgment as Plaintiff suggests. Magistrate Judge Edmonds, under the proper legal standard of review set forth in Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009), provides a thorough analysis of each of the claims, recommending that the Court grant Defendant's motion on Plaintiff's claims for tortious breach of the duty of good faith and fair dealing and on Plaintiff's claim for negligence, and deny Defendant's motion for judgment as a matter of law on Plaintiff's breach of contract and state consumer fraud claims. Defendant filed its limited objections, objecting only to Magistrate Judge Edmond's findings that (1) the exculpatory provisions in the Residential Services Contract is void under the reasonable expectations doctrine, and (2) the Complaint states a viable claim for consumer fraud. Defendant argues that the Court should dismiss Plaintiff's claims in their entirety, or in the alternative, limit any recovered damages under the provisions of the agreement. In response, Plaintiff asserts that the Report and Recommendation should be affirmed in all respects and the objections of the Defendant be overruled and that the Court adopt the findings that Plaintiff has properly pled claims for breach of contract and consumer fraud. Plaintiff does not object to the Magistrate Judge's recommendation that the tortious breach -2-

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of duty of good faith and fair dealing and the negligence claims be denied. The Court finds, after consideration of all matters presented, including the objections of the Defendant, that the findings of the Magistrate Judge as set forth in the Report and Recommendation on Defendant's Motion for Judgment on the Pleadings are proper findings of fact and conclusions of law. II. Plaintiff's Motion for Partial Summary Judgment On January 31, 2011, Magistrate Judge Edmonds issued her Report and Recommendation, recommending that the District Court, after its independent review of the record, enter an order denying Plaintiff's Motion for Partial Judgment, based on the finding that the liability limitation clause does not violate the doctrine of reasonable expectations, is not unconscionable, and does not violate public policy, setting forth the proper legal standard and analysis under Ruler 56(c)(2), Fed.R.Civ.P. Plaintiff filed objections to the recommendation to deny his motion, relying mainly on public policy argument, absent legal authority. After consideration of the matters presented, including Plaintiff's objections and Defendant's response thereto, the Court finds that the findings of Magistrate Judge Edmunds and the recommendation to deny Plaintiff's Motion for Partial shall be accepted as set forth in the Report and Recommendations. Based on the foregoing, the Court finds, after consideration of all matters presented, and after an independent review of the record herein, that the findings of the Magistrate Judge as set forth in the Report and Recommendation on Defendant's Motion for Judgment on the Pleadings and the Report and Recommendation on Plaintiff's Motion for Partial Summary Judgment, shall be accepted and adopted as the findings of fact and conclusions of law of the Court. Accordingly, IT IS HEREBY ORDERED that Magistrate Judge Edmond's Report and Recommendation (Doc. 43) addressing Defendant's Motion for Judgment on the Pleadings is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court; -3-

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IT IS FURTHER ORDERED that Defendant's Motion for Judgment on the Pleadings (Doc. 20) is GRANTED in part and DENIED in part; IT IS FURTHER ORDERED that Defendant's Motion to Stay (Doc. 21) is DENIED; IT IS FURTHER ORDERED that Plaintiff's Rule 56(f) Motion for Continuance to Permit Additional Discovery (Doc. 29) is DENIED; IT IS FURTHER ORDERED that Magistrate Judge Edmond's Report and Recommendation (Doc. 56) on Plaintiff's Motion for Partial Summary Judgment is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court; IT IS FURTHER ORDERED that Plaintiff's Motion for Partial Summary Judgment (Doc. 27) is DENIED; IT IS FURTHER ORDERED that this matter shall proceed on the remaining claims of breach of contract and consumer fraud; IT IS FURTHER ORDERED that this matter is referred back to Magistrate Judge Edmonds for all pretrial proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and LRCiv 72.1 and LRCiv 72.2.

DATED this 31st day of March, 2011.

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