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Weitman v. Weitman

United States District Court, Ninth Circuit

December 19, 2013

STEVE WEITMAN, Plaintiff,
v.
JIM WEITMAN and TAYNA WYLDER, individually and as husband and wife, WEITMAN EXCAVATION, LLC, an Oregon limited liability company, STAR CONSTRUCTION SERVICES, LLC, an Oregon Limited Liability Company, dba Star Concrete, DOES 1 through 5, Defendants.

OPINION AND ORDER

MICHAEL W. MOSMAN, District Judge.

This is a lawsuit brought by Steve Weitman against his brother Jim, a company that Jim founded and of which Steve has been a member (at least at one time), and several other persons and entities. Defendants moved for partial summary judgment [37], arguing that there is insufficient evidence to support seven of the eight claims and that Defendants are entitled to judgment as a matter of law on those claims. Fed.R.Civ.P. 56(a). Plaintiff subsequently withdrew two of the alleged claims. (Pl.'s Resp. [46] at 37.)

I must decide the motion as to five of the original claims: claim one, for breach of contract; claim two, for declaratory judgment as to Steve Weitman's membership interest in the LLC; claim three, for fraud and intentional misrepresentation; claim four, for conversion; and claim five, for breach of fiduciary duty. Other than the request for a declaratory judgment, each of these claims is brought only against Jim Weitman individually.

LEGAL STANDARD

Summary judgment is proper 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). The court must view the evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears the initial responsibility of informing the court of the basis of its motion and providing evidence that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden is met, the non-moving part must "present significant probative evidence tending to support its claim or defense." Intel Corp. v. Hartford Acc. & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (internal quotation omitted). The non-moving party fails to meet its burden if "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Id. (quoting Matsushita, 475 U.S. at 587).

The court should view inferences drawn from the facts in the light most favorable to the nonmoving party T.W. Elec. Serv. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support the claim than would otherwise be necessary. Matsushita, 475 U.S. at 587.

DISCUSSION

I. Withdrawn Claims

The complaint [1] as originally filed also alleged claims for shareholder's remedies for oppressive conduct under Oregon law and for civil RICO under 18 U.S.C. § 1962. (Compl. [1] ¶ 87-120.) These claims have been withdrawn. (Pl.'s Resp. [46] at 37.) Consequently, I DISMISS these claims without prejudice.

Because these were the only claims asserted against Defendants Tayna Wilder and Star Construction Services, LLC, there are no remaining claims against these defendants. Consequently, the suit is DISMISSED as to these defendants.

II. Evidentiary Objections

Defendants raise evidentiary objections [51] to several of the summary judgment exhibits submitted by Plaintiff in support of his opposition to summary judgment.

A. Objections to Exhibits

Defendants argue that Exhibit G is wholly inadmissible. (Def.'s Reply [49] at 9.) For purposes of summary judgment, I find that Plaintiff has laid a sufficient foundation for the first three pages of this exhibit, which were printed from Weitman Construction's accounting records. The admissibility at trial of the fourth page of Exhibit G, which is purported to be a summary of Weitman Construction's accounting records for the year 2010, (S. Weitman Decl. [52-1] ¶ 36), cannot be determined on the current record. However, I find that regardless of whether or not this summary is admitted there is a genuine dispute of ...


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