Charlotte B Milliner et al v. Mutual Securities, Inc.

Filing 120

ORDER Denying Plaintiffs' 109 Motion for Partial Summary Judgment Re: Damages. Signed by Judge Thelton E. Henderson on 6/30/17. The motion hearing and further case management conference scheduled for July 10, 2017 are hereby VACATED.(tehlc2, COURT STAFF) (Filed on 6/30/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLOTTE B. MILLINER, et al.,

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Plaintiffs,

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v.
MUTUAL SECURITIES, INC.,
Defendant.

Case No. 15-cv-03354-TEH
ORDER DENYING PLAINTIFFS’
MOTION FOR PARTIAL
SUMMARY JUDGMENT RE:
DAMAGES

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Presently before the Court is Plaintiffs’ motion for partial summary judgment re:

United States District Court
Northern District of California

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damages (ECF No. 109). Defendant Mutual Securities, Inc. (“MSI”) timely opposed the

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motion (ECF No. 112), and Plaintiffs timely replied (ECF No. 119). Pursuant to Civil

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Local Rule 7-1(b), the Court finds this matter is suitable for resolution without oral

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argument, and vacates the July 10, 2017 hearing and case management conference.

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Having carefully reviewed the parties’ written arguments, the Court DENIES Plaintiffs’

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motion WITHOUT PREJUDICE for the reasons set forth below.

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DISCUSSION

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In the present motion, Plaintiffs seek two orders: (1) an order “establish[ing] the

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proper measure of damages caused by Defendant’s breach of duty, and determining those

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damages as suffered by Ms. Brem”; and (2) an order “establishing that Defendant breached

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its suitability duty by loading Ms. Brem’s portfolio with high risk [over the counter]

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Stocks and/or by failing to diversity the portfolio by placing 100% (or nearly 100%) of

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Plaintiff [Brem’s] funds in speculative and high risk foreign mining stock.” ECF No. 109

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at 2:2–8. Plaintiffs explain that they seek to build upon the court’s prior holding that MSI

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breached its duty to determine the suitability of Bock and Evans’ recommended

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investments. ECF No. 109 at 1:18–2:8. However, although the Court previously held in

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its March 18, 2017 Order that “MSI’s failure to determine suitability [was] conclusively

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established” through MSI’s Requests for Admissions, see ECF No. 87 at 7:25–8:24, MSI

subsequently moved to amend these Requests for Admissions and filed a motion for leave

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to file a motion for partial reconsideration of the Court’s March 18, 2017 order. See ECF

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Nos. 90–91. More specifically, in MSI’s motion for leave to file a motion for partial

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reconsideration, MSI sought leave to move the Court to reconsider its ruling that MSI

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breached its duty to determine suitability under FINRA Rules. ECF No. 90 at 1:3–5.

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After reviewing the parties’ briefs, oral arguments, and Plaintiffs’ supplemental briefing,

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the Court granted both of MSI’s motions. See ECF No. 113. Thus, at the present moment,

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MSI’s liability is unsettled1, and the Court finds Plaintiffs’ motion to be premature. See J

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& J Sports Prods., Inc. v. Johns, No. CIV. 1:14-1347 WBS JLT, 2015 WL 13236876, at

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*6 (E.D. Cal. Dec. 4, 2015) (refusing to rule on damages because defendant had not yet

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United States District Court
Northern District of California

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been found liable); Baker v. D.A.R.A. II, Inc., No. CV-06-2887-PHX-LOA, 2008 WL

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191995, at *11 (D. Ariz. Jan. 22, 2008) (same); Smith v. Micron Elecs. Inc., No. CV-01-

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244-S-BLW, 2005 WL 5328543, at *6 (D. Idaho Feb. 4, 2005) (same).

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CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for partial summary judgment re:

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damages is DENIED WITHOUT PREJUDICE.

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IT IS SO ORDERED.

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Dated: 6/30/2017

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_____________________________________
THELTON E. HENDERSON
United States District Judge

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MSI’s motion for partial reconsideration is due today, June 30, 2017. ECF No. 113 at
10:13–14.s
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