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Cozumel Leasing, LLC v. International Jets, Inc.

United States District Court, W.D. Washington, Tacoma

March 28, 2017

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.


          ROBERT J. BRYAN United States District Judge

         This 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.

         This 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.

         Defendant 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 completed.


         In its 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) conspiracy. Id.

         In its 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).

         No 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 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. 1987).

         The 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).

         Rule 56 (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).


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