United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's motion for
reconsideration (Dkt. No. 100) of this Court's summary
judgment order (Dkt. No. 98). Having thoroughly considered
the motion and the relevant record, the Court hereby DENIES
the motion for the reasons explained herein.
for reconsideration are disfavored. The Court will ordinarily
deny such motions in the absence of a showing of manifest
error in the prior ruling or a showing of new facts or legal
authority which could not have been brought to its attention
earlier with reasonable diligence.” Local Rule 7(h)(1).
Motions for reconsideration are not the place for parties to
make new arguments or to ask the Court to rethink what it has
already thought. Richard v. Kelsey, 2009, slip op.
at *1 (W.D. Wash. Nov. 9, 2009).
Plaintiff's Failure to Warn Claim
first argues the Court should reconsider its grant of summary
judgment because it overlooked his failure to warn claim.
(Dkt. No. 100 at 2.) The Court addressed this claim, but did
not find it necessary to reach Plaintiff's consumer
expectations argument because Plaintiff failed to present
“significant probative evidence tending to
support” the allegation that the subject port and chute
existed when Defendant installed the conveyor or an argument
that the product was otherwise “not reasonably
safe” at that time of manufacture. Smolen v.
Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th
Cir. 1990); Wash. Rev. Code § 7.72.030(1) (the
Washington Product Liability Act (“WPLA”) imposes
liability on a manufacturer where, due to inadequate
warnings, the product was not reasonably safe when
manufactured) (emphasis added).
the Court's grant of summary judgment on this claim was
not based, as Plaintiff suggests, on the foreseeability of
Plaintiff's injury. (See Dkt. No. 100 at 2-3)
(citing cases holding that foreseeability is not an element
of a failure to warn claim). Under both common law principles
and the WPLA, strict liability applies only where a duty is
first owed “based on characteristics of the
manufacturer's own product.” Macias v.
Saverhagen Holdings, Inc., 282 P.3d 1069, 1074
(Wash. 2012). The Court found that Plaintiff did not present
evidence tending to support its allegation that the port was
a characteristic of Defendant's product sufficient to
establish such a duty. Finally, at summary judgment Plaintiff
alleged only insufficient warning at the time of injury, not
at the time of manufacture. (See Dkt. No.
92 at 21.) The Court finds no basis to reconsider its
decision on Plaintiff's failure to warn claim.
Application of the Standard for Summary Judgment
claim that the Court misapprehends the summary judgment
standard is largely an argument that the summary judgment
standard is unconstitutional. (Dkt. No. 100 at 5-7) (citing
academic articles that question the modern practice of
summary judgment). It is not the place of this Court to
re-write the standard for summary judgment, but to apply it
as it exists, with guidance from higher courts.
further asserts that the Court misapplied the standard
because it did not ask “whether there was a genuine
issue of material fact.” (Dkt. No. 100 at 9.) On
summary judgment, “an issue is genuine only if the
evidence is sufficient for a reasonable jury to return a
verdict for the nonmoving party.” Bayle v. Allstate
Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The relevant question is “whether [the party]
upon whom the burden of proof rests is entitled to present
its case to the jury.” Triton Energy Corp., 68
F.3d at 1221. To succeed before a jury, Plaintiff must
establish by a preponderance of the evidence that the
conveyor was installed by Defendant with the subject port.
See id.; Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “The mere existence of a scintilla of
evidence in support of the non-moving party's position is
not sufficient” to overcome summary judgment.
Anderson, 477 U.S. at 252.
Plaintiff's view, a genuine issue of material fact exists
because parties disagree on who installed the subject port.
(Dkt. No. 100 at 6.) As the Ninth Circuit held in Triton
Energy Corp. v. Square D Co., Plaintiff is correct only
“in a limited sense.” 68 F.3d 1216, 1221 (9th
Cir. 1995). In Triton, the Ninth Circuit upheld a
grant of summary judgment where expert opinions differed
regarding the condition of a product when it left
defendant's plant, but where evidence supporting the
opinions was insufficient to create a triable issue of fact.
Similarly, Plaintiff here failed to “[establish] that
its version of the facts is more probable than not.”
Id. Despite the parties' dispute of fact over
the providence of the port, the Court finds no manifest error
in requiring Plaintiff to also show a genuine issue for
determine whether Plaintiff met this burden, the Court looked
to Plaintiff's circumstantial evidence and resulting
“permissible inferences.” Triton Energy
Corp., 68 F.3d at 1221. Plaintiff is correct that the
Court must draw all inferences in its favor as the nonmoving
party. (See Dkt. No. 100 at 8.) But “such
inferences are limited to those upon which a reasonable jury
might return a verdict” and must be based on underlying
evidence of “sufficient quantum or quality.”
Triton Energy Corp., 68 F.3d at 1220-21. The Court
found Plaintiff's proffer of evidence insufficient to
“show that it could demonstrate to a jury by a
preponderance of the evidence that its loss ought to be
shifted to [Defendant].” Id. at 1222.
Plaintiff's motion for reconsideration does not identify
manifest error, but merely asks the Court to “rethink
what it already thought.” Richard, 2009 WL
3762844 at *1. The Court will not grant reconsideration on
extent that Plaintiff raises an argument that the pneumatic
sampling system that Defendant installed was defective when
installed, this is a new argument not properly raised on a
motion for ...