Opinion
3:20-cv-01622-AR
07-27-2022
NICHOLE L. KONOLOFF, and JASON EAVES, Plaintiffs, v. SAFECO INSURANCE COMPANY OF AMERICA, a Liberty Mutual Company, SUBARU OF AMERICA, Inc., and SUBARU CORPORATION,f/k/a Fuji Heavy Industries, Ltd., Defendants.
FINDINGS AND RECOMMENDATION
JEFFREY ARMISTEAD UNITED STATES MAGISTRATE JUDGE.
Plaintiffs Nichole L. Konoloff and Jason Eaves bring this action against defendants Subaru of America, Inc. ("SOA'') and Safeco Insurance Company of America. Konoloff, who owned a 2014 Subaru Forester vehicle ("the vehicle") manufactured by SOA and insured by Safeco, alleges that on September 6, 2018, the vehicle suddenly accelerated from a parked position, causing injuries to herself and passenger Eaves. Plaintiffs allege four claims-breach of express and merchantability warranties,fraudulent concealment,and deceptive trade practices-arising out of the accident. Plaintiffs seek more than $10 million in economic, noneconomic,and punitive damages.
Subaru Corporation also was named as a defendant yet has not been served and has not filed an appearance.
Presently before the court is defendants' motion for summary judgment under Federal Rule of Civil Procedure (Rule) 56. Plaintiffs did not respond. As explained below,defendants' motion should be granted.
SOA filed this motion,and the court granted Safeco's request to join SOA's motion in all respects. Order, ECF 38.
LEGAL STANDARDS
Summary judgment is appropriate when "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). A party seeking summary judgment bears the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). In determining whether to grant summary judgment,the court must view the evidence in the light most favorable to the nonmoving party. Curley v. City of N. Las Vegas, 772 F.3d 629,631 (9th Cir. 2014); Hernandez v. Space/abs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). A dispute about a material fact is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). There is no genuine issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
If the moving party shows no issue of material fact exists, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Celotex, 477 U.S. at 324. A party cannot defeat a summary judgment motion by relying on the allegations set forth in the complaint, unsupported conjecture, or conclusory statements. Hemandez, 343 F.3d at 1112. Summary judgment should be entered against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322; Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (moving party is entitled to judgment as a matter of law "[i]f the non-moving party fails to make this showing").
FACTUAL AND PROCEDURAL BACKGROUND
Although a moving party is not entitled to summary judgment by default, under Rule 56(e)(2), where "the non-moving party bearing the burden of proof at trial fails to respond to facts asserted in a summary judgment motion, the non-moving party's failure to respond 'permits a court to consider the facts undisputed for purposes of the motion.'" Clink v. OSHU, Case No. 3:13-cv-01323-SI, 2014 WL 3850013, at *2 n.l (D. Or. Aug. 5, 2014) (quoting Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013)) (simplified). Plaintiffs did not file briefing responsive to defendants' summary judgment or timely request more time to do so. When plaintiffs requested oral argument, they submitted no evidentiary support for their claims and provided only a list of potential witnesses. Nor have plaintiffs consistently adhered to discovery obligations while prosecuting this action. The court, therefore, considers these facts undisputed for purposes of this motion. FED. R. Crv. P. 56(e)(2).
Plaintiffs' action arises out of a single motor vehicle accident on September 6, 2018 (the "accident"), in which Konoloff was driving and Eaves was the front passenger. Konoloff alleges that she and Eaves were stopped in the parking lot of Deanz Greenz Marijuana Dispensary in Southeast Portland when the vehicle suddenly accelerated 10 to 15 feet, striking a nearby parked car and knocking over a portion of an adjacent fence before the vehicle stopped. Plaintiffs did not report the accident to the police and did not seek immediate medical attention. On September 14, 2018, in a recorded interview with Safeco's insurance adjuster, Konoloff stated that she and Eaves were not injured in the accident. Deel. Stephen P. Yoshida Supp. SOA's Mot. Summ. J. ("Yoshida Deel.") Ex. 1 at 2, ECF No. 32-1. The vehicle was not kept; it was sold for salvage, and later repaired and resold.
On September 6, 2020, plaintiffs filed a complaint in Multnomah County Circuit Court alleging four causes of action: (1) breach of warranty; (2) breach of implied warranty of merchantability; (3) fraud by omission or fraudulent concealment; and (4) deceptive trade practices under Oregon's Unfair Trade Practices Act ("UTPA"), O.R.S. § 646.607. Contrary to Konoloff's statement to her insurance adjuster, plaintiffs seek to recover medical expenses for the injuries sustained in the accident. Compl. ¶10, ECF No. 1-1. Plaintiffs also seek "damages and restitution in an amount to be proven at trial" and $10 million in punitive damages. Id. at 28 (prayer for relief). Defendants removed the action to this court on September 17, 2020. Notice of Removal, ECF No. 1.
During discovery, defendants repeatedly sought to understand the nature and extent of plaintiffs' alleged injuries and, on April 15, 2021, moved to compel responses to SOA's requests for documents and interrogatories. Mot. Compel, ECF No. 11. On May 13, 2021, Magistrate Judge John V. Acosta held a discovery conference on SOA's motion to compel. Minutes of Proceedings, ECF No. 16. Plaintiffs did not respond, failed to appear at the discovery conference, and failed to inform the court that they could not attend. Id. Judge Acosta granted SOA's motion and determined SOA was entitled to fees. Judge Acosta further required plaintiffs' counsel to appear at an in-person hearing on June 1, 2021, and show cause why he should not be held in contempt for failing to appear and for failing to register for the court's electronic filing system, Id., Plaintiffs' counsel appeared at the June 1, 2021, show-cause hearing, and was ordered to pay SOA's attorney fees and to register for CM/ECF notifications within 14 days, Minutes of Proceedings, ECF No. 21.
On July 23, 2021, Judge Acosta set a telephone status conference to discuss ongoing discovery issues; plaintiff's counsel again failed to appear, Minutes of Proceedings, ECF No, 25, Judge Acosta set over the discovery conference until August 3, 2021, Id., At the August 3 conference, defendants' counsel again expressed difficulties obtaining discovery and Judge Acosta ordered plaintiff to produce responsive documents by August 11, Minutes of Proceedings, ECF No. 26.
Defendants took Konoloff's deposition on September 7, 2021, at which time they learned - for the first time-that she has preexisting injuries from a June 2016 motor-vehicle accident and a history of panic-attack episodes that she alleges are caused by driving. SOA Mot. Extend at 4, ECF No. 27. SOA also learned during Konoloff's deposition that plaintiffs had not turned over all discoverable materials, including photographs of the accident scene and vehicle just after the accident, plaintiffs' online research into "unintended acceleration" related to the vehicle and other vehicles, and text messages sent between Konoloff and a witness. Id. at 6. Upon learning this, SOA promptly moved to extend the discovery deadline to obtain the information. Id. After reviewing SOA's motion, Judge Acosta set an in-person hearing for November 15, 2021, requiring Konoloff and Eaves to personally appear, advising them that failure to appear "will result in sanctions." Order, ECF NO. 28.
At the November 15 hearing, Judge Acosta ordered plaintiffs to produce the outstanding discovery identified by SOA in their motion, permitted the parties' experts to inspect the vehicle at a mutually agreeable time, and required plaintiffs to provide to defendants "an itemized list of their respective injuries" resulting from the accident by December 6, 2021. Minutes of Proceedings, ECF No. 30.
On December 14, 2021, plaintiffs provided the required "itemized list" to defendants. Yoshida Deel. Ex. 5. In it, Konoloff asserts she is entitled to $25,000 in economic damages and $3.5 million in non-economic damages. Id. at 3. Eaves asserts he is entitled to $5,000 in economic damages and $1.5 million in non-economic damages. Id. Plaintiffs also contend that based on the itemized list and the allegations in the complaint, they "have sufficiently alleged the circumstances upon which their [$10 million] punitive damages claim is made." Id. at 2. The itemized list provides no factual allegations supporting plaintiffs' requested damages and did not come with any documentation. Id.
On January 20, 2022, defendants moved for summary judgment on all claims. Defendants contend that there is no genuine issue of material fact as to plaintiffs' lack of personal injuries or entitlement to economic damages and noneconomic damages. Alternatively, defendants move to strike plaintiffs' claim for punitive damages. Plaintiffs never responded. On February 22, defendants filed a reply and asked that the motion be considered on an expedited basis. Reply, ECF No. 39. On February 23, 2022, Judge Acosta stayed the pending case-management deadlines. Scheduling Order, ECF No. 40. On March 3, 2022, plaintiffs filed an expert-witness list and requested oral argument on the motion for summary judgment. ECF Nos. 41-42. On March 4, Judge Acosta denied plaintiffs' request for argument and ordered the witness list stricken from the record because they "did not seek leave to file late or timely seek an extension." Order, ECF No. 43. On March 24,the case was reassigned to this court. Notice of Reassignment,ECF No. 44.
On July I,2022,plaintiffs moved to consolidate this case with Weston v. Subaru of America, Inc., Case No. 1:20-cv-05876-CPO-SAK (D.N.J.). Pls.' Mot. Consol., ECF No. 46. On July 15, 2022, plaintiffs moved to have this court reconsider Judge Acosta's March 4 Order denying oral argument and striking the witness list. Pls.' Mot. Recons., ECF No. 50.
PRELIMINARY PROCEDURAL MATTER-ADMISSIONS
On August 31, 2021, Safeco served plaintiffs by email with Requests for Admissions under Rule 36. Yoshida Deel. Ex. 2,ECF No. 32-2. Safeco informed plaintiffs of their obligation to respond within 30 days,and that failure to answer or object would result in admission of the requests under Rule 36(a)(3). As of January 20,2022,plaintiffs had not responded to the requests,and as of today's date,plaintiffs have not moved or requested that the admissions be withdrawn or amended. Yoshida Decl. ¶ 3. Defendants now ask the court to consider the matters in the requests admitted.
Rule 36(a)(3) specifically provides: "A matter is admitted unless,within 30 days after being served,the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or attorney." Admitted matter is "conclusively established" absent a court order allowing the admission to be withdrawn or amended. Id. "Unanswered requests for admissions may be relied on as the basis for granting summary judgment." Conlon v. United States, 474 F.3d 616,621 (9th Cir. 2007) (citing O'Campo v. Hardisty, 262 F.3d 621,624 (9th Cir. 1958)). Moreover,any "evidence inconsistent with a Rule 36 admission is properly excluded." 999 v. C.I.T. Corp., 776 F.2d 866, 869 (9th Cir. 1985).
The court finds plaintiffs failed to comply with Rule 36 and considers the matters in Safeco's requests admitted. Therefore, the requested admissions establish the following:
Request for Admission No.1: ... "Konoloff never submitted to Defendant Safeco any written proof of claim for PIP benefits, as required by Section C of part E of Safeco's policy[.]”
Request for Admission No.2: ..."Eaves never submitted to Defendant Safeco any written proof of claim for PIP benefits, as required by Section C of part E of Safeco's policy[. ]"
Request for Admission No. 5: ... "Konoloff did not receive any medical treatment for injuries allegedly sustained in this accident prior to September 6, 2020."
Request for Admission No. 6: .... "Eaves did not receive any medical treatment for injuries allegedly sustained in this accident prior to September 6, 2020."Yoshida Deel. Ex. 2 at 2-3.
Personal injury protection ("PIP ") benefits are defined by Oregon statute and "consist of payments for expenses, loss of income and loss of essential services as provided in ORS 742.524." O.R.S. § 742.520.PIP benefits include payments for "all reasonable and necessary expenses for "medical, hospital, dental, surgical, ambulance and prosthetic services." O.R.S.§ 742.524; see Dowell v. Or. Mut. Ins. Co., 361 Or. 62, 64 (2017) (describing PIP benefits must be offered by insurance companies to cover expenses incurred by insureds from injuries sustained in automobile accidents).
DISCUSSION
A. No Genuine Issue of Fact on Fraud Claim
Defendants move for summary judgment on plaintiffs' fraud claim. In this claim, plaintiffs assert that SOA knew the vehicle suffered from an alleged sudden acceleration defect, concealed that fact, had a duty to disclose the alleged defect, and failed to disclose the alleged defect. Compl. ¶¶ 86-89. Plaintiffs' complaint broadly appears to assert fraud based on theories of fraudulent omission and fraudulent concealment. Defendants are entitled to summary judgment on plaintiff's fraud claim.
To establish a fraud claim in Oregon generally, plaintiffs must show: "(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; (9) and his consequent and proximate injury." Webb v. Clark, 274 Or. 387,391 (1976); McNeff v. Emmert, 260 Or. App.239, 247 (2013). "Fraud must be proved by clear and convincing evidence. Clear and convincing evidence means that the truth of the facts asserted is highly probable." Coy v. Starling, 53 Or.App. 76,80 (1981). If any element is "not established by clear and convincing evidence," the fraud claim "must fail." Webb, 274 Or. at 391.
"Oregon law recognizes four theories of fraud: "(1) affirmative misrepresentations; (2) omission of a material fact when there is an independent duty to disclose; (3) omission of a material fact needed to make a "half-truth" not misleading; and (4) actual or active concealment." Martell v. General Motors LLC, 492 F.Supp.3d 1131,1142 (D. Or.2020); Bixby v. KBR, Inc., 893 F.Supp.2d1067, 1073 (D. Or.2012); Musgrave v. Lucas, 193 Or.401,410 (1951).
Plaintiffs failed to respond to this summary judgment motion, including submitting no evidence that identifies a material misrepresentation about an alleged sudden acceleration defect in SOA's vehicles generally or Konoloff's vehicle specifically. Plaintiffs have thus failed to create a genuine issue of fact that it is "highly probable" that defendants made an affirmative material misrepresentation, concealed material information, or failed to disclose material information about an alleged sudden acceleration defect. On this record, no reasonable juror could find that defendants committed fraud under any theory. Thus,the summary judgment motion should be granted. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1103 (9th Cir.2000) ("If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment.") (citation omitted); Wallace v. City of San Jose, 799 Fed.Appx. 477,479 (9th Cir. 2020) ("[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case,and on which that party will bear the burden of proof at trial.") (simplified).
B. No Genuine Issue of Material Fact on UTPA Claim
The UTPA allows a private right of action for persons who have "suffer[ed] an ascertainable loss of money or property, real or personal, as a result of another person's willful use or employment of a method,act or practice declared unlawful under ORS 646.608." O.R.S. § 646.638(1). To succeed on a UTPA claim, plaintiffs must show: "(1) a violation of ORS 646.608(1),(2) causation,(3) damages, and (4) willfulness by Defendant." Colquitt v. Mfrs. and Traders Tr. Co., No.3:15-cv-00807-BR, 2016 WL 1276095, at *5 (D. Or. Apr.1,2016). "A willful violation occurs when the person committing the violation knew or should have known that the conduct of the person was a violation." O.R.S. § 646.605(10). Oregon courts have recognized that failing to disclose a material risk of a defective product is actionable under the misrepresentation provisions in O.R.S.§ 646.608(1)(b),(e),and (g). State ex rel. Rosenblum v. Johnson & Johnson, 275 Or.App. 23, 29-30 (2015).
In the complaint, plaintiffs assert that defendants violated the UTPA by failing to disclose the alleged sudden acceleration defect, that SOA knew the defect existed,had a duty to disclose the defect,and violated the UTPA by continuing to market and sell the vehicle. Compl. ¶¶ 91106. Defendants correctly explain that plaintiffs fail to identify which specific UTPA provision under O.R.S. 646.608(1) they are alleged to have violated. See State ex rel. Rosenblum v. Living Essentials, LLC, 313 Or.App. 176,185 n.5 (2021) (noting there are 79 unlawful trade practices described in§ 646.608(1)). In any case,defendants move for summary judgment,arguing that plaintiffs fail to create a genuine issue of fact on any theory of liability because they have identified no evidence of a misrepresentation,a willful violation,and have not articulated an "ascertainable loss." The court agrees.
Plaintiffs have submitted no evidence creating a genuine issue of material fact that SOA failed to disclose a material risk of an alleged defect or acted willfully. Plaintiffs failed to respond to the summary judgment motion and have submitted no evidence of a latent defect in SOA's vehicles generally or Konoloff's vehicle specifically. Plaintiffs have submitted no evidence to support their claim that SOA knew of the alleged defect and marketed and sold the allegedly defective vehicle anyway. Rathgeber v. James Hemenway, Inc., 335 Or. 404, 413 (2003) (holding trial court erred in submitting UTPA claim to jury without any evidence that defendant knew or should have known of misrepresentation at time statements were made). Because plaintiffs have not come forward with any evidence that creates an issue of fact on critical elements of their UTPA claim for which they will bear the burden at trial,defendants' motion for summary judgment on the UTPA claim should be granted. Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 794, 798-99 (9th Cir. 2010) (holding Rule 56(c) requires entry of summmy judgment where the nonmoving party fails to make a showing on an essential element for which it bears the burden of proof); Wallace, 799 Fed.Appx. at 479 (same).
C. No Genuine Issue of Fact on Breach of Warranry Claims
To succeed on a claim for breach of express warranty, plaintiffs must show: "(1) a warranty; (2) breach of that warranty; (3) notice to the warrantor of the breach; and (4) damages proximately caused by the breach."' CHMM, LLC v. Freeman Marine Equip., Inc., Case No. 3:12-cv-01484-ST, 2013 WL 3025137, at *3 (D. Or. June 14, 2013) (quoting Wagner Tractor, Inc. v. Shields, 381 F.2d 441, 443-44 (9th Cir. 1967)); see also O.R.S. §§ 72.7140 & 72.7150 (providing that buyers are entitled to incidental and consequential damages, including injury to person or prope1iy). To prevail on a breach of the implied warranty claim, plaintiffs here must show the vehicle was not fit for its ordinary use, that defendants breached the implied warranty, and that defendants' breach caused their injuries. O.R.S. § 72.3140 (UCC cmt.13 discussing elements of breach of implied warranty claim).
Plaintiffs allege in their complaint that SOA provided an express warranty when Konoloff purchased the vehicle, SOA knew about the sudden acceleration defect and refused to fix the allegedly defective vehicle while under warranty, plaintiffs expended money to repair the vehicle to correct the defect, SOA knew of the defect because of similar service requests, SOA breached the warranty, and plaintiffs suffered actual damages because the vehicle failed before its expected useful life. Compl. ¶¶ 25, 42-45, 60-69. Plaintiffs also allege that defendants breached the implied warranty because the vehicle was not fit for its ordinary and intended purpose and that they suffered damages. Id., ¶¶ 76-84.
Defendants move for summary judgment on plaintiffs' breach of warranty claims because plaintiffs have presented no evidence that they suffered any damages caused by the alleged breach. Defendants are correct.
Plaintiffs have presented no evidence necessary to survive summary judgment on their warranty claims. Plaintiffs admit they sought no medical treatment for injuries resulting from the September 6, 2018 accident. Plaintiffs also admit that they did not seek reimbursement from Safeco for any expenses resulting from the accident by not seeking PIP benefits. Plaintiffs' itemized list of damages details no specific factual allegations to support their assertions of damages. Yoshida Deel. Ex. 5. Plaintiffs failed to respond to this motion and consequently, have submitted no evidence to support their warranty claims. Thus, plaintiffs have failed to make a showing on the element of damages for which they will bear the burden of proof at trial.
And, as discussed above, plaintiffs have submitted no evidence to support their theory that the vehicle is defective, or that defendants made material misrepresentations or omissions about the vehicle and the alleged defect. See Vollrath v. DePuy Synthes Bus. Entities, Case No. 3:19-cv-1577-SI, 2022 WL 326781, at* 11 (D. Or. Feb. 3, 2022), appeal filed (9th Cir. Apr. 6, 2022) (granting summary judgment on breach of warranty claim were there was no evidence that product was defective or unfit for purpose required). For all these reasons, the court finds plaintiffs have failed to establish a genuine issue of fact on multiple elements for which they will bear the burden of proof of their breach of warranty claims. Accordingly, defendants' motion for summary judgment should be granted on plaintiffs' express and implied warranty claims. Parth, 630 F.3d at 798-99; Nissan Fire, 210 F.3d at 1099; Wallace, 799 Fed.Appx. at 479.
D. No Evidence to Support Punitive Damages or Injunctive Relief
In Oregon, punitive damages are "a penalty for conduct that is culpable by reason of motive, intent, or extraordinary disregard of or indifference to known or highly probable risks to others." Andor by Affatigato v. United Air Lines, Inc., 303 Or. 505, 517 (1987). To award punitive damages, a defendant's "degree of culpability" must be "greater than inattention or simple negligence." Badger v. Paulson Inv. Co., Inc., 311 Or. 14, 28 (1991). Oregon codified this standard in O.R.S. § 31.730(1), which provides that punitive damages may be awarded only when "clear and convincing evidence" shows the defendant "acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others." Evidence meets the clear and convincing standard when the "truth of the facts asserted is highly probable." Thompson ex rel. Thorp Fam. Charitable Remainder Unitrust v. Federico, 324 F.Supp.2d 1152, 1170 (D. Or. 2004) (applying "clear and convincing" standard in motion for summary judgment on punitive damages claim).
Defendants move for summary judgment against plaintiffs' request for punitive damages contending that they have failed to create a genuine issue of material fact on the degree of culpability required to impose punitive damages. The court agrees.
Plaintiffs seek $10 million in punitive damages based on their allegation that defendants acted with "willful, wanton conduct" and acted with "fraud and/or malice." Yoshida Deel. Ex. 5 at 2. Plaintiffs allege that Safeco colluded with SOA to engage in wrongful and wanton conduct. Id. Plaintiffs did not respond to this motion and have submitted no evidence to support their allegations. And when instructed by Judge Acosta to enumerate their damages, plaintiffs provided merely conclusory allegations unsupported by any factual details. Plaintiffs have therefore failed to present clear and convincing evidence from which a reasonable juror could find that defendants acted with malice or reckless and outrageous indifference, and acted with a conscious indifference to plaintiffs' health, safety and welfare. See Scott Tr. of Winona Rd. Trust v. MCI Comm'cn Serv., 1:20-cv-01626-CL, 2021 WL 7084886, at *12 (D. Or. Nov. 17, 2021), clarified by 2022 WL 1014123 (Mar. 25, 2022), adopted 2022 WL 981089 (Mar. 31, 2022), appeal filed (9th Cir. May 23, 2022) (granting summary judgment on punitive damages claim where plaintiff presented no evidence in support of punitive damages). Consequently, defendants' motion for summary judgment and alternative motion to strike plaintiffs' claim for punitive damages should be granted.
In summary, defendants have shown a lack of genuine issues of material fact on each of plaintiffs' claims and defendants' summary judgment motion should be granted. Because plaintiffs have substantiated none of their claims, plaintiffs have not shown that an award of injunctive relief or other remedial remedies are appropriate here and those requested remedies should be stricken.
E. Plaintiffs' Belated Motions for Consolidation and Reconsideration
Six months after their responsive briefing to defendants' summary judgment motion was due, plaintiffs filed a motion to consolidate this action under Rule 42 with Weston v. Subaru, a putative class action that has been ongoing in the District of New Jersey since August 2020. Mot. Consol., ECF No. 46. Plaintiffs' motion to consolidate is denied. The court has no discretion under Rule 42 to consolidate an action in the District of Oregon with an action in the District of New Jersey. Inv.'s Rsch. Co. v. U.S. Dist. Court for Cent. Dist. of Cal., 877 F.2d 777, 777 (9th Cir.1989) (noting Rule 42 provides district courts "broad discretion" to consolidate actions pending within the same district) (emphasis added).
Next, plaintiffs' move for reconsideration of Judge Acosta's March 4, 2022 Order. Under Rule 60(b), reconsideration is proper if the court: (1) is presented with newly discovered evidence; (2) committed clear error or the determination was manifestly unjust; or (3) an intervening change in the law occurred. Nunes v. Ashcroft, 375 F.3d 805, 807 (9th Cir. 2004). Motions for reconsideration are committed to the court's sound discretion. Id.
As noted briefly above, defendants moved for summary judgment on January 20, 2022, and plaintiffs did not respond or request an extension of time to respond. The court took the motion under advisement on February 22 after defendants filed a reply and plaintiffs failed to respond. On March 3, plaintiffs filed a list of experts it intended to call at trial (ECF No. 41) and a request for oral argument to "argue and oppose" defendants summary judgment motion (ECF No. 42). In a March 4 Order, Judge Acosta struck them from the record because plaintiffs did not seek leave from the court to file late or timely request an extension of time. Order, ECF No. 43. Plaintiffs' current motion presents no newly discovered evidence and does not contend a change in the law has occurred. Plaintiffs argue that Judge Acosta's Order is manifestly unjust because counsel's failure to timely file the witness list is due to excusable neglect and that they will suffer prejudice if their expert reports are not considered. Plaintiffs' motion is misplaced.
Plaintiffs' proposed list of expert witnesses was not responsive to any issue in defendants' summary judgment motion and striking it resulted in no conceivable prejudice to plaintiffs. Turning to the request for oral argument, plaintiffs do not explain how they have been prejudiced by Judge Acosta's Order.
Under Local Rule 7-1(d), it is within the court's discretion to set oral argument on any motion. See LR 7-1(d) ("The Court will determine whether oral argument would help it resolve the matter. If the Court elects to hear oral argument, the Court will notify the parties of the date and time for any hearing."). Oral argument on summary judgment is necessary only "when a party would suffer unfair prejudice as a result" of the court's refusal to hear oral argument. Mahon v. Credit Bureau of Placer Cnty. Inc., 171 F.3d 1197, 1200 (9th Cir. 1999). Plaintiffs' initial request for oral argument contained no substantive response to the pending summary judgment motion, was not accompanied by an affidavit or declaration explaining their failure to timely respond, and did not seek additional time to file a response. Plaintiffs' motion for reconsideration is similarly devoid of any affidavit or declaration that explains or excuses their failure to timely file a response or to request an extension. Moreover, oral argument is not the place to submit evidence or testimony. The record reveals that Judge Acosta provided plaintiffs ample opportunity to respond to the summary judgment motion and that they failed to do so. Judge Acosta's denial of oral argument was neither clearly erroneous nor manifestly unjust. See Lake at Las Vegas Invs. Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991) ("When a party has [had] an adequate opportunity to provide the trial court with evidence and a memorandum of law, there is no prejudice [in a refusal to grant oral argument] since any error can be rectified by an appeal of the summary judgment."). When the only prejudice a party suffers is the court's "adverse ruling on the motion[,] [t]his is not sufficient to establish the required showing of prejudice." Mahon, 171 F.3d at 1200-01 (citing Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998)). Plaintiff's motion for reconsideration is denied.
CONCLUSION
For the reasons discussed above, defendants' motion for summary judgment (ECF No. 31) should be GRANTED, and this case DISMISSED with prejudice. Plaintiffs' motion for consolidation (ECF No. 46) and motion for reconsideration (ECF No. 50) are DENIED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.