United States District Court, D. Oregon, Portland Division
DOUGLAS N. STUNKARD, Plaintiff,
ROBERTO CRUZ MAYA and GOLDEN STATE FOODS CORP., Defendants.
YIM YOU UNITED STATES MAGISTRATE JUDGE
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motions are moot as they have been superseded by other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:
Plaintiff's Second Motion for Leave to File Amended
Complaint (ECF #37)
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
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.
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.
Defendants' Amended Motion for Partial Summary Judgment
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.
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.
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.
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.
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)). “Summary judgment is
appropriate where [the ...