United States District Court, W.D. Washington, Tacoma
COZUMEL LEASING, LLC, a Delaware limited liability company, Plaintiff,
INTERNATIONAL JETS, INC., a Washington corporation; DAVID KILCUP, an individual; ALDEN ANDRE, an individual, AIRCRAFT SOLUTIONS, LLC, a Washington limited liability company, Defendants.
ORDER ON AIRCRAFT SOLUTIONS LLC'S MOTION FOR
SUMMARY JUDGMENT AND PLAINTIFF'S RULE 56 (D)
J. BRYAN United States District Judge
matter comes before the Court on Defendant Aircraft
Solutions, LLC's Motion for Summary Judgment (Dkt. 62)
and Plaintiff's Motion to Deny or Defer Considering
Defendant Aircraft Solutions, LLC's Motion for Summary
Judgment and for Discovery Pursuant to Rule 56 (d) (Dkt. 71).
The Court has considered the pleadings filed in support of
and in opposition to the motions and the file herein.
case arises out of Plaintiff's purchase of a 1977 Cessna
Citation ISP (“aircraft”) that Plaintiff asserts
was not airworthy and required thousands of dollars to
repair. Dkt. 1.
Aircraft Solutions now moves for summary dismissal of all
claims against it. Dkt. 62. Plaintiff moves for either a
denial of the motion or deferral of the motion until
discovery can be completed pursuant to Fed.R.Civ.P. 56 (d).
Dkt. 71. For the reasons provided, Plaintiff's Rule 56
(d) motion should be granted and the Aircraft Solutions'
Motion for Summary Judgment should be stricken, to be
re-noted, if appropriate, after necessary discovery is
RELEVANT FACTS AND PENING MOTION FOR SUMMARY
Amended Complaint, Plaintiff asserts, in part, that Defendant
Aircraft Solutions, LLC, conducted an inadequate inspection,
delivered an un-airworthy aircraft, and failed to pay for
additional necessary repairs despite agreeing to the
contrary. Dkt. 48. Plaintiff asserts claims against Aircraft
Solutions for: (1) unjust enrichment, (2) negligent
misrepresentation, (3) violation of the Washington Consumer
Protection Act (“CPA”), (4) negligence, and (5)
motion for summary judgment, Aircraft Solutions asserts that
Plaintiff cannot prove it unjustly retained a benefit from
Plaintiff because repair related payments were from VonJet,
the aircraft's previous owner, and Plaintiff cannot show
that it was an intended third party beneficiary. Dkt. 62. It
argues that the negligent misrepresentation claim should be
dismissed because it neither made representations to
Plaintiff nor provided information to the Plaintiff in the
business transaction between International Jets and
Plaintiff. Id. Aircraft Solutions asserts that
Defendant Alden Andre is not its agent, so any
representations he made to Plaintiff would not be
attributable to it. Id. Aircraft Solutions asserts
that there is no basis for Plaintiff's CPA claim, and so,
maintains that claim should be dismissed. Id.
Aircraft Solutions also argues that Plaintiff's
negligence claim fails because it owed no duty to Plaintiff.
Id. Lastly, it maintains that it did not engage in
an activity with an unlawful purpose or accomplish any
activity by unlawful means, and so, Plaintiff's civil
conspiracy claim should be dismissed. Id. In support
of its motion, Aircraft Solutions cites to the declaration of
its General Manager, Charlie Archer, (Dkt. 63), and the
Plaintiff's Amended Complaint (Dkt. 48).
depositions have been taken. Dkt. 71. The discovery deadline
is June 18, 2017 and the dispositive motions deadline is July
14, 2017. Dkt. 70. This case is set to begin trial on
September 5, 2017. Dkt. 42.
SUMMARY JUDGMENT AND RULE 56 (d) STANDARD
judgment is proper only if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). The moving party is entitled to judgment
as a matter of law when the nonmoving party fails to make a
sufficient showing on an essential element of a claim in the
case on which the nonmoving party has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985).
There is no genuine issue of fact for trial where the record,
taken as a whole, could not lead a rational trier of fact to
find for the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)(nonmoving party must present specific, significant
probative evidence, not simply “some metaphysical
doubt.”). See also Fed. R. Civ. P. 56(e).
Conversely, a genuine dispute over a material fact exists if
there is sufficient evidence supporting the claimed factual
dispute, requiring a judge or jury to resolve the differing
versions of the truth. Anderson v. Liberty
Lobby, Inc., 477 .S. 242, 253 (1986); T.W. Elec.
Service Inc. v. Pacific Electrical Contractors
Association, 809 F.2d 626, 630 (9th Cir.
determination of the existence of a material fact is often a
close question. The court must consider the substantive
evidentiary burden that the nonmoving party must meet at
trial - e.g., a preponderance of the evidence in most civil
cases. Anderson, 477 U.S. at 254, T.W. Elect.
Service Inc., 809 F.2d at 630. The court must resolve
any factual issues of controversy in favor of the nonmoving
party only when the facts specifically attested by that party
contradict facts specifically attested by the moving party.
The nonmoving party may not merely state that it will
discredit the moving party's evidence at trial, in the
hopes that evidence can be developed at trial to support the
claim. T.W. Elect. Service Inc., 809 F.2d at 630
(relying on Anderson, supra). Conclusory,
non-specific statements in affidavits are not sufficient, and
“missing facts” will not be
“presumed.” Lujan v. National Wildlife
Federation, 497 U.S. 871, 888-89 (1990).
(d) provides that if the non-moving party shows “by
affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the
court may: (1) defer considering the motion or deny it; (2)
allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.” A
party requesting relief pursuant to Rule 56(d) “must
identify by affidavit the specific facts that further
discovery would reveal, and explain why those facts would
preclude summary judgment.” Tatum v. City and
County of San Francisco, 441 F.3d 1090, 1100
(9th Cir. 2006).
MOTION TO DENY OR DEFER CONSIDERATION OF ...