Response To Plaintiffs' Objection To Spartan's Proposed Judgment

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Lisa G. Lewallen (013592) E-Mail: [email protected] Lisa G. Lewallen, PLLC P O Box 33430 Phoenix, Arizona 85067 602-314-6996 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 RESPONSE TO PLAINTIFFS’ OBJECTION TO SPARTAN’S PROPOSED JUDGMENT

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Defendant Spartan (“Spartan”) requests this Court sign its proposed form of judgment because: (1) there are no remaining claims against Spartan in this case; and (2) Spartan is entitled to certification under Rule 54(b). This response is supported by the accompanying Memorandum of Points and Authorities. DATED this 27th day of April, 2009.

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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In their Objection to Spartan’s Proposed Judgment [Doc. ___], Plaintiffs argue

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THERE ARE NO REMAINING CLAIMS AGAINST SPARTAN

that, as a preliminary matter, Rule 54(b) language would be inappropriate in this case because there is a pending claim under New Mexico law against Spartan. This argument is misplaced because it fails to recognize that summary judgment in Spartan’s favor was appropriate because expert witness opinion testimony was

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required to sustain any of the claims Plaintiffs sought to bring against Spartan,

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regardless of whether the Court ultimately decided that New Mexico or Arizona law

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would apply to the substantive issues in this case. Spartan incorporates herein by

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this reference the arguments contained in its response to Plaintiff’s motion for

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reconsideration that reject Plaintiff’s new theory.

Summary judgment is still

appropriate in Spartan’s favor. II.

SPARTAN IS ENTITLED TO CERTIFICATION UNDER RULE 54(b) The general principles regarding Rule 54(b) and its application are essentially

undisputed: “When more than one claim for relief is presented in an action, or when

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multiple parties are involved, entry of final judgment as to one or more but fewer than all of the claims or parties is appropriate ‘only if the court expressly determines

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that there is no just reason for delay.’” Amor v. State of Arizona, 2009 WL 529523 (D. Ariz) (q uoting Federal Rule of Civil Procedure 54(b)). Judgments under the rule are reserved for cases where the costs and risks of multiple proceedings and appeals are outbalanced by the “pressing needs of the litigants for an early and separate judgment as to some claims or parties.” Id. (quoting Frank Briscoe Co. v. MorrisonKnudsen Co., 776 F.2d 1414, 1416 (9th Cir.1985) (other citations omitted)). In this case, Spartan freely acknowledges it has the burden of establishing the propriety of Rule 54(b) certification, id. (citing Braswell Shipyards, Inc. v. Beazer E., Inc., 2 F.3d 1331, 1335 (4th Cir.1993), a burden Spartan believes it has met. To this end, the Court first must determine whether its decision is final. Id. A judgment is “‘final” if it is “an ultimate disposition of an individual claim entered in the course of a

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multiple claims action.” Braswell, supra (citing Curtiss-Wright Corp. v. Gen. Electric Co, 446 U.S. 1, 7-8, 100 S.Ct. 1460, 1464-65 64 L.Ed.2d 1 (1980) (quoting Sears, Roebuck &

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Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 900 (1956)). Here, there can be no

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reasonable dispute that the Court’s entry of summary judgment in Spartan’s favor is

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a final decision. It ends the litigation entirely against Spartan. Next, the Court must assure itself that Rule 54(b) language is appropriate by

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accounting for the administrative interests of the judicial system as well as the equities involved to make sure that the federal policy against piecemeal appeals is

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served. Id. (citing Curtiss-Wright, supra., 446 U.S. at 7-9, 100 S.Ct. at 1460)). Whether Spartan’s claims are separable from the others remaining in the case, and whether the nature of the claims already determined vis-à-vis Spartan are such that no appellate court would have to decide the same ones again should also be considered. Id (citing Curtiss-Wright, 446 U.S. at 9).

Where there are similar legal and factual issues

between the parties' claims, a Rule 54(b) order is generally disfavored unless where necessary to avoid a harsh and unjust result. Id. (citing Gregorian v. Izvestia, 871 F.2d 1515, 1519 (9th Cir.1989)). Plaintiff’s claims against Spartan are clearly different than those that can be asserted against the remaining Defendants.

Plaintiffs asserted a claim against

Spartan for the negligent selection of a Goodyear tire for its motor coach. The only

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“live” claims the Plaintiffs may assert against Goodyear are a product liability failure to warn claim and a negligent design claim that Goodyear’s tire was defective and

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unreasonably dangerous. The type of evidence needed to establish a negligence

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claim against Spartan is different in kind than that needed to establish the product

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liability claims against Goodyear.

In other words, the claims the Plaintiffs are

asserting against Spartan are “separable” from those it is bringing against Goodyear,

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and an appellate court would not be hearing an appeal (assuming, arguendo, that Goodyear were to appeal a judgment or final order) regarding the same or similar

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legal and/or factual issues between the parties. Amor, supra, (citing Curtiss-Wright, supra., 446 U.S. at 7-9, 100 S.Ct. at 1460). There are no issues to be litigated at trial that would have any bearing on Spartan’s liability. This is significant because Spartan is entitled to some finality to this litigation. As Plaintiffs note in their objection, the case has been active for nearly four years; more than 650 pleadings or other papers have been filed with the Court; Spartan has taken, defended, or attended countless depositions of fact and expert witnesses. With the Court’s grant of partial summary judgment, we all know now that Spartan never should have been included in this litigation because the Plaintiffs did not have a claim against them. Spartan has had to endure this frivolous litigation for four years, and it would be a harsh and unjust result to require them to wait any

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longer to finally end this matter. The court of appeals for the Ninth Circuit reached this same result in

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Continental Airlines, Inc. v. Goodyear Tire and Rubber Co., 819 F.2d 1519 (9th Cir. 1987).

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There, Rule 54(b) language was proper in a case involving a serious airline accident.

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An exculpatory clause in the sales contract between Continental and the aircraft's manufacturer barred certain of the airline's claims against the manufacturer as well

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as various suppliers of the aircraft's component parts (including tire companies), including claims for negligence and strict liability theories. The judgment did not

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affect the airline's potential recovery against any defendant for passenger indemnification, nor the airline's fraud and breach-of-warranty claims against the manufacturer based on the complete loss of the airplane. On appeal, the court held that the matters disposed of by partial summary judgment were severable factually and legally from the remaining claims such that Rule 54(b) language was appropriate. Spartan has met its burden of demonstrating its entitlement to the Rule 54(b) language contained in its proposed form of judgment. The facts and legal theories in this case are severable and different. And Spartan is entitled to finality in this litigation after the extensive cost incurred in defending a meritless lawsuit. Because there is no “just” reason to delay certification of this judgment in Spartan’s favor,

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Spartan respectfully requests that the Court forthwith enter judgment pursuant to Rule 54(b).

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RESPECTFULLY SUBMITTED 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, Esq. Attorney for Spartan Motors

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CERTIFICATE OF SERVICE

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I hereby certify that on April 27th, 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. Rodney W. Ott, Esq. Christine E. Broucek, 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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