Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hubbard v. Gardner

United States District Court, D. Oregon

May 18, 2018

ROBERT G. HUBBARD, JR., Plaintiff,
v.
ALVIN GARDNER, and JANET GARDNER, Defendants.

          FINDINGS AND RECOMMENDATION

          HONORABLE PAUL PAPAK UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Robert G. Hubbard filed this action against defendants Alvin Gardner ("Alvin"), Farmers Insurance Company ("Farmers"), and ten fictitiously named Doe defendants in the District of Arizona on November 30, 2016. By and through his complaint as originally filed, Hubbard alleged that he was injured in an automobile collision that occurred in Portland, Oregon. Hubbard further alleged that the driver of the other automobile involved in the collision was defendant Alvin, and that Alvin was at fault in causing the collision. Hubbard further alleged that Farmers was at all material times Alvin's insurer, and that Farmers has refused in bad faith to pay Hubbard's medical expenses resulting from the collision. Arising out of the foregoing, Hubbard alleged Alvin's liability for negligence and Farmers' liability for bad faith.

         Farmers and Alvin separately moved to dismiss Hubbard's action for lack of personal jurisdiction over them in the District of Arizona (Farmers on January 27, 2017, and Alvin on February 8, 2017). While the then-defendants' motions to dismiss for lack of personal jurisdiction were pending, on March 1, 2017, the parties filed a joint report pursuant to Federal Civil Procedure Rule 26(f). The parties' joint report included defendants' statement that the driver of the vehicle involved in the collision with Hubbard's vehicle had not been Alvin but rather Alvin's wife, Janet Gardner ("Janet"). The parties' joint report also included Hubbard's statement that he had been advised that the driver of the vehicle involved in the collision with his vehicle had been Janet rather than Alvin, and that in the event discovery established the accuracy of that advice, Hubbard would seek to amend his complaint to name Janet as a defendant.

         The court for the District of Arizona discussed the defendants' pending motions to dismiss for lack of personal jurisdiction with the parties on March 8, 2017, directing the parties to discuss settlement, and, in the event settlement could not be reached, to consider entering a stipulation to transfer of Hubbard's action to this District. On March 20, 2017, the parties filed a stipulation to transfer Hubbard's action to this District pursuant to 28 U.S.C. § 1631 "with the understanding that Defendants [t] hereby agree[d] not to move to dismiss on the grounds of personal or subject matter jurisdiction once the matter is transferred." Docket No. 18 at 1. The court for the District of Arizona accordingly transferred Hubbard's action to this District effective March 21, 2017.

         On July 25, 2017, 1 recommended that Hubbard's claim against Farmers be dismissed, on the ground that Oregon law, which governs the parties' dispute, does not recognize a bad faith claim against an insurer under the circumstances alleged to be at issue here. On September 13, 2017, Judge Hernandez adopted that recommendation without modification.

         Effective August 29, 2017, Hubbard amended his complaint, abandoning his claims to the extent alleged against Farmers and/or any fictitiously named defendants and adding Janet as an additional defendant herein. By and through his amended complaint, Hubbard now alleges that it was Janet rather than Alvin who was driving the other automobile involved in the collision that caused Hubbard's complained-of injuries. Hubbard further alleges that Janet operated her vehicle negligently, causing her vehicle to collide with Hubbard's vehicle with consequent injury to Hubbard, and that Alvin was negligent in permitting Janet to drive the vehicle. Arising out of the foregoing, Hubbard prays for economic damages from both defendants in unspecified amounts and noneconomic damages from both defendants in unspecified amounts. This court has diversity jurisdiction over Hubbard's action pursuant to 28 U.S.C. § 1332(a) based on the complete diversity of the parties as of the date Hubbard initiated these proceedings and the presumable amount in controversy.

         On September 14, 2017, Janet moved to dismiss Hubbard's claims against her pursuant to Federal Civil Procedure Rule 12(b)(6), filing three affidavits in support of that motion, and Alvin moved for summary judgment as to Hubbard's claims against him. In response to the defendants' motions, Hubbard indicated a need for further discovery in order to support his claims. Accordingly, I set a teleconference with the parties to discuss the issues raised by defendants' motions and by Hubbard's response. That teleconference took place on November 27, 2017. At the teleconference of November 27, 2017, the parties agreed that it would be appropriate to reopen discovery in order to permit Hubbard to obtain the evidence he required to support his claims and to litigate his opposition to the defendants' motions, and to stay further proceedings in connection with defendants' motions pending completion of such discovery. I entered a minute order to that effect, and set another teleconference for March 1, 2018, following the close of the re-opened discovery period.

         At the teleconference of March 1, 2018, Janet advised the court that she had no objection to conversion of her motion to dismiss into a motion for summary judgment. In addition, Alvin and Janet advised the court that they would not need to supplement the evidence adduced in support of their motions on September 14, 2017, with additional evidence obtained over the course of the re-opened discovery period. Notwithstanding his previous advice to the court that he required further discovery in order to support his claims and litigate his opposition to defendants' motions, Hubbard expressly advised the court that he likewise had no need to supplement his previously filed opposition memoranda with evidence obtained in discovery, but rather was satisfied with his opposition papers as already filed. Accordingly, I reset the pending dispositive motions on the court's under advisement calendar.

         Now before the court are Janet's constructive motion (#55) for summary judgment and Alvin's motion (#56) for summary judgment. I have considered the motions and all of the pleadings and papers on file. For the reasons set forth below, Janet's constructive motion (#55) for summary judgment should be denied, Alvin's motion (#56) for summary judgment should be granted, and summary judgment should be entered as to Hubbard's negligence claim in Alvin's favor only.

         LEGAL STANDARD

         Summary judgment is appropriate "if the movant 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). A party taking the position that a material fact either "cannot be or is genuinely disputed" must support that position either by citation to specific evidence of record "including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials," by showing that the evidence of record does not establish either the presence or absence of such a dispute, or by showing that an opposing party is unable to produce sufficient admissible evidence to establish the presence or absence of such a dispute. Fed.R.Civ.P. 56(c). The substantive law governing a claim or defense determines whether a fact is material. See Morekmd v. Las Vegas Metro. Police Dep't, 159 F.3d365, 369 (9th Cir. 1998).

         Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). In evaluating a motion for summary judgment, the district courts of the United States must draw all reasonable inferences in favor of the nonmoving party, and may neither make credibility determinations nor perform any weighing of the evidence. See, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).

         FACTUAL BACKGROUND

         I. The Parties

         Plaintiff Hubbard, now apparently a resident of Oregon, was a resident and citizen of Arizona as of the date he initiated these proceedings. Defendants Alvin and Janet are residents and citizens of Oregon.

         II. Material Facts [1]

         On December 3, 2014, Janet was driving a 2002 Kia Sedona of which she was the sole and registered owner when she was involved in a vehicle collision with two other vehicles, one of them driven by Hubbard. See Affidavit (#59) of Alvin Gardner ("Alvin Aff."), ¶¶ 2-3; see also Affidavit (#57) of Janey Gardner ("Janet Aff"), ¶¶ 2-3, 5; Janet Aff, Exh. 1. Janet was alone in her vehicle at the time the collision occurred. See Alvin Aff, ¶ 2; see also Janet Aff, ¶ 2. At the time the collision occurred, Janet was engaged in a personal errand on her own behalf in which Alvin had no involvement. See Janet Aff, ¶ 4.

         After the collision occurred, a police officer assisted the drivers of the three vehicles involved in exchanging contact and insurance information. See id,, ¶ 5. The officer gave Janet an information exchange form identifying the three drivers by name; that form identifies Janet by her full name as the driver of one of the vehicles, and does not bear Alvin's name in any context. See id. see also id., Exh, 2. It is Janet's understanding that the officer provided Hubbard with a copy of the same form containing the same information. See id., ¶ 5.

         Two days after the collision occurred, a representative of defendants' insurer took a recorded statement from Hubbard regarding the circumstances of the collision and the nature of the injuries he suffered as a result of the collision. See Affidavit (#58) of Anna Marie Scott ("Scott Aff."), ¶ 4. The recorded statement was later transcribed. See id.; see also id., Exh. 1. In response to the insurer's questions about the circumstances of the accident, Hubbard consistently refers to the driver of the Kia Sedona with the feminine pronouns "her" and "she," and never refers to the driver by any masculine pronoun, See Scott Aff., Exh. 1 at 6, passim.

         The same representative of defendants' insurer spoke with Hubbard on the telephone again on December 18, 2014. See id., ¶ 5. Later that same day, the representative sent Hubbard a letter confirming the substance of the telephone call. See id.; see also id., Exh. 2. The letter indicates that in the course of the telephone call, the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.