Paradise Construction, LLC v. Signature Flight Support Corporation

Filing 57

ORDER granting in part and denying in part Defendant's 44 Motion for Partial Summary Judgment, signed by Judge Ricardo S Martinez. (SWT)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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PARADISE CONSTRUCTION, LLC,

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Plaintiff,

ORDER GRANTING IN PART
DEFENDANT’S MOTION FOR PARTIAL
SUMMARY JUDGMENT

v.

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SIGNATURE FLIGHT SUPPORT
CORPORATION,
Defendant.

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I. INTRODUCTION

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Case No. C16-1810RSM

This matter comes before the Court on Defendant’s Motion for Partial Summary
Judgment. Dkt. #44. Defendant asks the Court to dismiss Plaintiff’s fraud claim and Plaintiff’s

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requests for damages for diminution in value and for repairs to the subject airplane in this matter.

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Id. Plaintiff responds by withdrawing its fraud claim, and opposing the request to dismiss its

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damages claims. Dkt. #52. For the reasons set forth below, this Court now GRANTS IN PART
and DENIES IN PART Defendant’s motion.

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II. BACKGROUND
This matter arises from an airplane accident occurring in Arlington, WA. Dkt. #1. The

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facts pertaining to the accident are now largely irrelevant to the instant motion, given that the

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only portion of the motion before the Court concerns Plaintiff’s requests for certain damages.

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The facts relevant to the Court’s discussion of that portion of the motion are noted where
applicable below.
ORDER– 1

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III. DISCUSSION
A. Legal Standard on Summary Judgment

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Summary judgment is appropriate where “the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In ruling

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on summary judgment, a court does not weigh evidence to determine the truth of the matter,
but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41
F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & Meyers,

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969 F.2d 744, 747 (9th Cir. 1992)). Material facts are those which might affect the
outcome of the suit under governing law. Anderson, 477 U.S. at 248.

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The Court must draw all reasonable inferences in favor of the non-moving party.

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See O’Melveny & Meyers, 969 F.2d at 747, rev’d on other grounds, 512 U.S. 79 (1994).
However, the nonmoving party must make a “sufficient showing on an essential element of
her case with respect to which she has the burden of proof” to survive summary judgment.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Further, “[t]he mere existence of a
scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at

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251.
B. Plaintiff’s Fraud Claim
Defendant first moves for summary judgment on Plaintiff’s claim for actual or

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constructive fraud under North Dakota law. Dkt. #44 at 9-12. In response, Plaintiff has
voluntarily withdrawn that claim. Dkt. #52 at 1. Accordingly, Defendant’s motion is

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ORDER– 2

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GRANTED as to Plaintiff’s Third Cause of Action for fraud, and that claim is now
DISMISSED.

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C. Damages
Defendant next moves to dismiss Plaintiff’s claims for diminution in value and
repair costs damages. Dkt. #44 at 12-14. For the reasons discussed below, Defendant’s

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motion is granted in part and denied in part.
1. Diminution in Value
Defendant seeks to dismiss Plaintiff’s request for diminution in value damages on

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the basis that Plaintiff has produced no evidence from which such an award could be
determined. Dkt. #44 at 13-14. In response, Plaintiff “concedes it has not undertaken the
expense to hire a professional aircraft appraiser,” but insists that a jury could conclude from

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trial testimony that damage history adversely affects aircraft resale values. Dkt. #52.
Plaintiff also now asserts that its owner, Kurt Lepping, has calculated the alleged
diminution in value. Id.

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The Court agrees with Defendant that this request for damages should be dismissed.
As the Court previously found with respect to proposed expert Charles Longley, the
evidence now proffered by Plaintiff through Mr. Lepping is wholly untimely. Prior to

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responding to the instant motion, Plaintiff provided no evidence to support its diminution in
value claim, nor did it disclose how much it believed it was damaged in that way. See Dkt.
#45, Ex. 2 at 9. Instead, it simply stated, “It is common knowledge that damage history
lowers the market value of aircraft, just as is the case for, e.g., automobiles with a crash
history.” Id. Plaintiff now asserts for the first time that the subject airplane has lost
$10,000 in market value. Dkt. #52 at 4. In support of that assertion, Plaintiff relies on the
ORDER– 3

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Declaration testimony of Mr. Lepping.

Dkt. #51 at ¶ 5.

However, that testimony

contradicts that given in Mr. Lepping’s deposition, during which he testified:

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Q

(By Mr. Wooding) Are you claiming any loss of market value or
diminution in value as a result of this gear-up?

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Yes.

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How much?

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Don't have that information in front of me.

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So you have no documentation regarding that?

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Not in front of me. I don’t have it committed to memory.

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Do you have documentation about the diminution of value?

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Do I have it? Yes, I have it. I don’t have it on me.

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I understand that. But have you received –

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No. I’ve talked to the aircraft appraisers and how to calculate it. I
just don’t have that in front of me.

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But my question is, have you come up with a number? I know you
don’t have it here.

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No.

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You have not?

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No.

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Any estimate as to what you’re going to claim?

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No.

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How am I going to find out?

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Through my attorney.

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When am I going to find out?

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ORDER– 4

When they give it to you.

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Dkt. #45, Ex. 1 at 99:11-100:10.
Plaintiff cannot defeat summary judgment by producing a Declaration that
contradicts prior deposition testimony. Monetti v. City of Seattle, 875 F. Supp.2d 1221,

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1229 (W.D. Wash. 2012) (recognizing that “a party cannot use a sham affidavit to
contradict a prior statement to create a material issue for the purpose of overcoming
summary judgment”). Likewise, the Court agrees with Defendant that Mr. Lepping’s

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opinion is also untimely, and constitutes an inadequate expert opinion.

Contrary to

Plaintiff’s assertion that diminution in value of an airplane is “common knowledge,” Mr.
Lepping testified that he had to speak to aircraft appraisers about how to calculate it. Dkt.

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#45, Ex. 1 at 99:23-24. Further, he admits that his opinion is based on his own history of
buying and selling airplanes. Dkt. #51 at ¶ 5. Thus, his opinion relies on “specialized
knowledge.” FRE 702. Plaintiff did not disclose Mr. Lepping as an expert in this matter or

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produce an expert report on this issue pursuant to Federal Rule of Civil Procedure 26(b)(2).
The deadline for doing so was January 19, 2018. Dkt. #34. Thus, Plaintiff may not rely on
its untimely disclosure now. For these reasons, the Court agrees that Defendant is entitled

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to summary judgment with respect to diminution in value, and the Court dismisses that
category of damages from this matter.
2. Repair Costs
Finally, Defendant asks this Court to dismiss Plaintiff’s request for repair cost
damages. Dkt. #44 at 13. Defendant argues that it does not know how much Plaintiff is
claiming in such damages, although it did receive documentation of approximately $75,000
in parts and labor costs on the last day of discovery. Id. As a result, Defendant asserts that
the request for these damages is purely speculative and therefore should be dismissed.
ORDER– 5

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Plaintiff responds that because it has produced documentation supporting its damages
request, this damages claim should not be dismissed. Dkt. #52 at 3-4.

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The Court agrees with Plaintiff in part. With respect to the damages supported by

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documents produced during discovery (approximately $75,000 in costs), the Court will not
dismiss the request for those damages.

Nonetheless, nothing in this Order precludes

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Defendant from making any objections it feels are necessary with respect to the
admissibility or authenticity of any testimony or documents offered at trial by Plaintiff in
support of those damages.

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However, it appears that Plaintiff is also attempting to assert four new items of

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repair costs through its response to the instant motion. Indeed, Mr. Lepping states in his
Declaration that he now calculates the total repair costs at $96,116.37. Dkt. #51 at ¶ 3. The

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four additional repair items referred to by Mr. Lepping, totaling $25,176.59, are not
accompanied by any supporting documents. See id. Moreover, Defendant notes, and Mr.
Lepping appears to admit, that these were never disclosed during discovery. Dkts. #56 at 5

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and #51 at ¶ 5. Mr. Lepping previously testified that airplane repairs were completed
before his deposition in November 2017. Dkt. #45, Ex. 1 at 98:25-99:8. Plaintiff provides
no justification for failing to disclose the additional alleged damages by the March 20,

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2018, discovery deadline.

respect to the additional $25,000 in damages set forth in Mr. Lepping’s Declaration at Dkt.
#51, ¶ 3, and will dismiss that portion of the claim.

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Accordingly, the Court will grant summary judgment with

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ORDER– 6

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IV. CONCLUSION
Having reviewed Defendant’s motion, the opposition thereto, and reply in support

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thereof, along with the parties’ supporting Declarations and exhibits, the Court hereby finds and
ORDERS:
1. Defendant’s Motion for Partial Summary Judgment (Dkt. #44) is GRANTED IN

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PART and DENIED IN PART as discussed above.

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a. Plaintiff’s Third Cause of Action for Fraud (Dkt. #1 at ¶ ¶ 5.12-5.24) is

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DISMISSED.

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b. Plaintiff’s claim for diminution in value damaged is DISMISSED in its

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entirety.

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c. Plaintiff’s claim for repair damages remains, but is LIMITED to any

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damages that can be supported by evidence disclosed to Defendant within the

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discovery period. Any request for the additional $25,000 in damages set

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forth in Mr. Lepping’s Declaration at Dkt. #51, ¶ 3 is DISMISSED.

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DATED this 22 day of May, 2018.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER– 7