Response To Plaintiffs' Motion For Reconsideration

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Lisa G. Lewallen (013592) E-Mail: [email protected] Lisa G. Lewallen, PLLC P O Box 33430 Phoenix, Arizona 85067 602-743-6263 Attorney for Defendant Spartan Motors, Inc. and its subsidiary Spartan Chassis, Inc.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Case No.: CV05-2046-PHX-ROS

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SPARTAN’S REPONSE TO PLAINTIFFS’ MOTION FOR RECONSIDERATION

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Plaintiffs’ motion for reconsideration should be denied because: (1) the only remaining claim in this case is a design defect claim pertaining to the subject

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Goodyear tire involved; (2) Plaintiffs have never pled any claim against Spartan

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related to the Goodyear tire; and (3) Plaintiffs have failed to offer any proof of how

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Spartan is jointly and severally liable for the tire involved. This response is supported by the accompanying Memorandum of Points and Authorities.

DATED this 27th day of April, 2009.

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Lisa G. Lewallen, PLLC

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By:__s/Lisa G. Lewallen Lisa G. Lewallen Attorney for Defendant Spartan Motors

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MEMORANDUM OF POINTS AND AUTHORITIES

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I.

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The Only Surviving Claim in this Case is a Tire Design Defect Claim On March 30, 2009, this Court entered its order [Doc. 651] granting Defendant

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Goodyear Tire & Rubber Company’s (“Goodyear”) motion for summary judgment

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[Doc. 445] in substantial part. In that order, the Court excluded all of Plaintiffs’

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claims against Goodyear except a tire design defect claim. The next day, the Court granted Defendant Spartan Motors, Inc.’s (“Spartan”) motion for summary judgment

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in full. [Doc. 652]. Spartan filed its proposed form of judgment soon thereafter on April 13, 2009. [Doc. 656].

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II.

There Is No Claim or Evidence against Spartan under this Theory Based on the record, as of March 31, Plaintiffs’ only remaining claim in this case

is a tire design defect claim against Goodyear. In their motion for reconsideration, Plaintiffs set forth a new theory of liability against Spartan in a desperate attempt to keep Spartan in this case.

Plaintiffs’ new theory is that Spartan is jointly and

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severally liable under New Mexico law for the allegedly defective design of a Goodyear tire because Spartan was a seller of the tire in the chain of distribution.

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Plaintiffs’ new theory against Spartan fails for several reasons.

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First,

legal

authority

distinguishable from the instant case.

is

misplaced

and/or

significantly

The New Mexico statutes and products

liability cases cited in Plaintiffs’ motion presume that a defendant in a strict product liability case is appropriately in the case. None of the authority cited addresses a situation such as the one at bar where the federal trial judge has excluded all expert opinions against a defendant under either federal procedural rules (i.e. Rule 26) or federal evidentiary law (Daubert analysis).

In short, Plaintiffs’ claimed legal

authority is inapposite and not controlling. Plaintiffs’ new theory against Spartan also fails because it was never pled or

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Plaintiffs’

disclosed during the four years of this litigation. After a detailed review of the entire

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record and file, no claim, allegation, or evidence can be found or referenced in: Plaintiffs’ Complaint, Plaintiffs’ thirty-six Disclosure Statements, or Plaintiffs’

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voluminous responses to discovery propounded by any of the defendants in this

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case.

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More importantly, in the face of Spartan’s motion for summary judgment, Plaintiffs were required under Rules 56(c) and (e) to set forth sufficient evidence in

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the record to support their position. There is absolutely no evidence set forth in Plaintiffs’ Response to Spartan’s Motion for Summary Judgment [Doc. 576]

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pertaining to Spartan’s alleged status as a seller in the chain of distribution of the subject Goodyear tire. Under the rules, it was incumbent upon Plaintiffs to set forth any evidence they had on this issue, and they failed to do so. This is simply Plaintiffs’ last-ditch attempt to keep Spartan in a case that it never should have been named in. Spartan has been forced to spend hundreds of thousands of dollars defending itself over four years. For a company of this size, this case has been a huge financial burden. Given today’s economy and Spartan’s specific economic challenges, equity dictates finality for Spartan in this case. Plaintiffs have no expert or surviving claim against Spartan.

The Court gave thoughtful

consideration to the parties’ briefing of Spartan’s motion for summary judgment. Summary judgment was granted in full. Plaintiffs’ attempts to impede Spartan’s exit

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from this case should not be indulged. For the foregoing reasons, the Plaintiffs’ motion for reconsideration should be

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resoundingly denied.

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DATED this 27th day of April, 2009. Lisa G. Lewallen, PLLC

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By:_ s/Lisa G. Lewallen_____________________ Lisa G. Lewallen, Esq. Attorney for Spartan Motors

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CERTIFICATE OF SERVICE

I hereby certify that on April 27, 2009, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: David L. Kurtz, Esq. The Kurtz Law Firm 7420 E. Pinnacle Peak Road, Suite D-128 Scottsdale, AZ 85255 Attorneys for Plaintiffs Haeger Blanca Quintero, Esq. Cozen O’Connor 501 W. Broadway, Suite 1610 San Diego, CA 92101 Attorneys for Plaintiff Farmers Insurance Company of Arizona Graeme Hancock, Esq. Fennemore Craig, P.C. 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012 Attorneys for Defendant The Goodyear Tire & Rubber Company Robert W. Shely, Esq. Bryan Cave LLP Two N. Central Avenue, Suite 2200 Phoenix, AZ 85004 Attorneys for Defendant Gulf Stream Coach, Inc. s/L. G. Lewallen

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