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Waller v. Mann

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

August 23, 2019

THOMAS WILLIAM WALLER, JR., Plaintiff,
v.
RANJIT S. MANN, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          Robert S. Lasnik United States District Judge.

         This matter comes before the Court on plaintiff Thomas William Waller, Jr.'s motion for partial summary judgment. For the following reasons, plaintiff's motion is GRANTED IN PART and DENIED IN PART.[1]

         BACKGROUND

         This case arises out of a collision that took place on October 15, 2014 in Kent, Washington. Defendant Ranjit S. Mann was driving a tractor-trailer for defendant Manney Transport, Ltd. (“Manney Transport”) on Central Avenue South. Ex. 2, Dkt. #26-1 (Mann. Decl.) at ¶¶ 2-3. As he prepared to turn into the driveway of a truck yard, id. at ¶¶ 4-7, the tractor was hit by a motorcycle driven by plaintiff. Id. at ¶ 7; Ex. 1, Dkt. #26-1 (Waller Dep.) at 69:23-70:5. Plaintiff suffered several injuries. Ex. B, Dkt. #28 at 12-14.

         Plaintiff filed a complaint against Mann and Manney Transport in King County Superior Court on October 5, 2017, asserting that Mann was negligent and violated state regulations and safety standards. Ex. A, Dkt. #4-1. He sought damages for his injuries, medical treatment, and loss of earning capacity. Id. at ¶¶ 8.1-8.5. Defendants removed the case to this Court on October 30, 2017. Dkt. #1; see 28 U.S.C. § 1332(a)(2). They filed an answer on November 3, 2017 and asserted fifteen affirmative defenses. Dkt. #6 (Ans.). By a letter dated January 28, 2019, defendants withdrew Defenses Nos. 2-5. Dkt. #26 at 7; see Dkt. #27 at 2. Plaintiff brought this motion for partial summary judgment on all remaining defenses except Defenses Nos. 6 and 12. See Dkt. #26. Defendants then withdrew Defenses Nos. 1, 8, 10, 13 and 15 in their response. Dkt. #27 at 2. What remains for adjudication, therefore, are Defenses Nos. 7, 9, 11 and 14.

         DISCUSSION

         A. Legal Standard

         A party is entitled to summary judgment if it “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The proper question … is whether, viewing the facts in the non-moving party's favor, summary judgment for the moving party is appropriate.” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citing Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1207 (9th Cir. 2016)). “[W]here evidence is genuinely disputed on a particular issue-such as by conflicting testimony-that ‘issue is inappropriate for resolution on summary judgment.'” Id. (quoting Direct Techs., LLC v. Elec. Arts, Inc., 836 F.3d 1059, 1067 (9th Cir. 2016)).

         B. Defenses Nos. 1-5, 8, 10, 13 and 15

         Regarding the defenses that defendants have already withdrawn, see Dkt. #27 at 2, plaintiff's motion is GRANTED.

         C. Plaintiff's Motion to Strike

         Plaintiff's motion included a declaration from Melanie Choi, a witness to the accident. Ex. 3, Dkt. #26-1 at 21-22. Along with their response, defendants filed declarations from Rex Miller, a police officer who investigated the accident, see Dkt. #30 (Miller Decl.) and Jeong Kimble, who is Choi's spouse and was also a witness to the accident. See Dkt. #29 (Kimble Decl.). In his reply, plaintiff requests that the Court strike Miller's declaration and parts of the declarations of Choi and Kimble. Dkt. #33 at 2-5. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART plaintiff's motion to strike.

         “A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed.R.Civ.P. 56(e)). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

         1. Rex ...


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