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Stunkard v. Maya

United States District Court, D. Oregon, Portland Division

January 3, 2020

DOUGLAS N. STUNKARD, Plaintiff,
v.
ROBERTO CRUZ MAYA and GOLDEN STATE FOODS CORP., Defendants.

          ORDER

          YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE

         On January 2, 2020, the court held a pretrial conference to resolve the following motions: (1) Defendants' Amended Motion for Partial Summary Judgment (ECF #30); (2) Plaintiff's Second Motion for Leave to File Amended Complaint (ECF #37); (3) Defendants' Motions in Limine (ECF #31); and (4) Defendants' Motion to Consider Reply Brief (ECF #38). Defendants also filed a Motion for Partial Summary Judgment (ECF #28) and plaintiff filed a First Motion for Leave to File Amended Complaint (ECF #33); however, those motions are moot as they have been superseded by other motions. The court grants defendants' Motion to Consider Reply Brief (ECF #38) and otherwise rules as follows:

         I. Plaintiff's Second Motion for Leave to File Amended Complaint (ECF #37)

         For the reasons stated on the record, plaintiff's motion is granted to the extent that plaintiff may amend the complaint to allege economic damages for impaired earning capacity in an amount equal to $100, 000 per year for the period between April 2016 to present. However, the court denies plaintiff's motion to amend the complaint to include future earning capacity, as the original complaint did not allege future losses but only losses up to the date the complaint was filed. Allowing plaintiff to allege future losses at this late date would be prejudicial to the defense, as defendants have not been placed on notice that plaintiff was seeking those losses. See Michaels v. Taco Bell Corp., No. 3:10-CV-1051-AC, 2012 WL 13054260, at *7 (D. Or. Oct. 29, 2012) (noting that “identifying and evaluation a person's future career prospects and future economic loss requires a number of assumptions about future and contingent events” that are different from “whether past wage loss and medical expenses have occurred”).

         Defendants also move to strike any references to John Doe and Bank of America National Trust and Savings Association. Plaintiff has failed to identify and serve the John Doe defendant. Accordingly, the John Doe defendant is stricken from the caption of the Fourth Amended Complaint, which was filed on January 2, 2020. It unclear what relevance Bank of America National Trust and Savings Association, which is not a defendant in this case, has to plaintiff's negligence claim. Accordingly, any references to Bank of American National Trust and Savings Association are also stricken.

         Additionally, defendants contend that plaintiff's claim for $5, 000 in economic damages for the repair of his vehicle should be dismissed as they have already paid for the damage and provided proof of payment to plaintiff. Plaintiff has requested jury instructions regarding damage to personal property and fair market value of personal property. Accordingly, it appears some dispute remains regarding whether plaintiff has been compensated for damage to his vehicle. Therefore, the claim for $5, 000 in economic damages for the repair of the vehicle shall remain in the complaint.

         II. Defendants' Amended Motion for Partial Summary Judgment (ECF #28)

         Defendants move for partial summary judgment on the basis that plaintiff has failed to produce competent evidence he has incurred income loss as a result of the collision.

         During his deposition, plaintiff testified that he previously worked for Intel as a mask designer, i.e., someone who “turn[s] a schematic diagram, a pictoral diagram, into the actual shapes that go into a chip to build a circuit.” Stunkard Dep. 9:18-10:3, ECF #29-1. His job required him to work in an office 40 hours per week. Id. at 11:1-11.

I would usually arrive at nine o'clock and I would sit down and open up my computer and start it up and bring up whatever circuit layout I was working on and start doing layout work and sending stuff off to the - to be checked by their computer programs and then fixing - getting it to agree with their design rules, and get it to match the schematics diagram provided by a circuit engineer, a design engineer, and just build a circuit and get it cleared by their computer program and turn it in.

Id. at 11:18-12:2. He sat at a workstation the entire day. Id. at 12:5.

         Plaintiff was terminated from his job in June 2015. Id. at 15:22-24. After his termination, plaintiff had intended to take a one-year break from work. Stunkard Decl. 2, ECF #36. However, he was “really unable to look for work” due to the collision. Id. at 12:14-15. He did not decline any job offers, because he “never went out and looked.” Id. at 21:21-23. There were “just too many physical problems to try” looking for work. Id. at 21:23-25; see also Id. at 13:15-20 (describing how there were “times when things have happened that . . . made it impossible for [him] to really seek work”). Plaintiff believed he could have found a job if he had been in better physical shape. Id. at 21:19-20; see also Id. 13:19-20 (claiming there were “a fair number of times when [he] just could not do a job reliably”). Plaintiff did not know whether any of his health care providers had restricted him from seeking employment because did not speak directly with them about that. Id. at 13:8-11. However, he had discussions with his health care providers about how he “should be careful of certain things.” Id. at 13:15-16. Finally, plaintiff admitted that because Intel's software is proprietary, in any new employment position, he would have to learn a “different set of software, ” which is “a pretty steep learning curve, or it can be.” Id. at 22:8-14.

         Plaintiff also submitted a declaration in which he attests that, due to the injuries he suffered in the collision, it has been “impossible” for him to complete the “normal tasks expected of one who performs the type of work [he] had performed” and is still qualified to perform. Decl. Stunkard 1, ECF #36. Plaintiff reports that, following his August 20, 2019 back surgery, he is “fully recovered” and his physical injuries are “fully resolved, ” and he “can now, once again, and for the first time since the December 17, 2015 collision, perform the normal tasks expected of one who performs the type of work [he] performed for Intel.” Id. at 2. He claims that he earned approximately $100, 000 when last employed at Intel. Id. He has maintained his membership in the Institute of Electrical and Electronics Engineers, Inc. (“IEEE”), accepted an officer position in the IEEE Consultants Network, networked with IEEE members, and created a resume. Id. at 2-3.

         The Ninth Circuit has held that where “[s]ome sort of study estimating the amount of damages was essential to [the plaintiff's] case, ” the plaintiff “must provide evidence such that the jury is not left to ‘speculation or guesswork' in determining the amount of damages to award.” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 808 (9th Cir. 1988) (quoting Dolphin Tours v. Pacifico Creative Serv., 773 F.2d 1506, 1509-10 (9th Cir. 1985)). ‚ÄúSummary judgment is appropriate where [the ...


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