Hansen v. Tohono O'odham Gaming Enter., (2012)

• Decision Date: 02 March 2012
• Docket Number: 2008-0220AV
• Citation: Hansen v. Tohono O'odham Gaming Enter., 3 TOR3d 147, 2008-0220AV (Jud. Ct. of the Tohono O'odham Nation Adult Civil Division Mar 02, 2012)
• Parties: Altha HANSEN and James SCOTT, Plaintiffs, v. Tohono O'odham Gaming Enterprise, Defendant.
• Court: Judicial Court of the Tohono O'odham Nation Adult Civil Division

3 TOR3d 147

Altha HANSEN and James SCOTT, Plaintiffs, v. Tohono O'odham Gaming Enterprise, Defendant.

No. 2008-0220AV

Judicial Court of the Tohono O'odham Nation Adult Civil Division

March 2, 2012

Richard L. Keefe, Counsel for Plaintiff.

Jones Skelton & Hochuli, P.L.C. by James P. Curran for Defendant.

Before Judge Michael T. Telep, Jr.

This matter is before the court on the Defendant's Motion for Summary Judgment.A trial court properly grants summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.Ariz. R. Civ. P. 56(c), 16 A.R.S., Pt 2;OrmeSch. VReeves, 166 Ariz. 301, 309, 802 P.2nd 1000, 1008(1990).A trial court should only grant

3 TOR3d 148

a motion for summary judgment "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.Orme Sch., 166 Ariz. at 309, 802 P.2d at 1008.In Arizona, a summary judgment motion sets in play shifting burdens.Initially, a party moving for summary judgment has the burden of showing there are no genuine issues of material fact and it is entitled to summary judgment as a matter of law.Only if the moving party satisfies this burden will the party opposing the motion be required to come forward with evidence establishing the existence of a genuine issue of material fact that must be resolved at trial.

We begin with the portion of Arizona Rule of Civil Procedure 56 that sets out what a court must do when presented with a motion for summary judgment.Rule 56(c) directs a court to enter summary judgment in favor of the moving party"if the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law."Ariz. R. Civ. P. 56(c)(1).Accordingly, to obtain a judgment under Rule 56(c), the moving party must come forward with evidence it believes demonstrates the absence of a genuine issue of material fact and must explain why summary judgment should be entered in its favor.Orme School v Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009(1990);Allyn, 167 Ariz. at 195, 805 P.2d at 1016(moving party bears burden of demonstrating both absence of any factual conflict and right to judgment).The moving party's responsibility to produce evidence is often referred to as the moving party's initial burden of production; the moving party's responsibility to persuade the court that there is no genuine issue of material fact for a reasonable jury to find is often referred to as the moving party's burden of persuasion or burden of proof.In a motion for summary judgment the moving party has the burden of persuasion while at trial one has the burden of proof.SeeAguilar v. Atlantic Richfield Co., 24 P.3d 493, 506 n.4(Cal.2001).The moving party's burden of persuasion on the motion remains with that party; it does not shift to the nonmoving party.Celotex Corp. v. Catrett, 477 U.S. 317, 300, 106 S.Ct. 2548, 2556, 91 L.Ed.2d 365(1986)(Brennan, J., dissenting).Regardless of the party that must prevail on the burden of proof at the time of trial, the burden of persuasion to show no genuine issue of material fact remains with the moving party.Lujan v. MacMurtie, 94 Ariz. 273, 277, 383 P.2d 187, 189(1963);State v. Crawford, 7 Ariz.App. 511, 557, 441 P.2d 586, 592(1968).

3 TOR3d 149

The burden of persuasion on the summary judgment motion is heavy.Where the evidence or inferences would permit a jury to resolve a material issue in favor of either party, summary judgment is improper.Allyn, 167 Ariz. at 197, 805 P.2d at 1016.Further, a court must view the evidence in a light most favorable to the non-moving party and draw all justifiable inferences in its favor.Sanchez v. City of Tucson, 191 Ariz. 128, 130; 953 P.2d 168, 170(1998);Orme School, 166 Ariz. at 309-10, 802 P.2d at 1008-09.The court need not "decide whether the moving party has satisfied its ultimate burden of persuasion" on the summary judgment motion unless it first finds "the moving party has discharged its initial burden of production."Celotex, 447 U.S. at 330-31, 106 S.Ct. at 2556(Brennan, J., dissenting);Schwab, 207 Ariz. at 60, 83 P.3d at 60("if a moving party's summary judgment motion fails to show an entitlement to judgment, the non-moving party need not respond to controvert the motion");Hydroculture Inc. v. Cooper & Lybrand, 174 Ariz. 277, 283, 848 P.2d 856 862 (App 1992).

PLAINTIFF OPPONENT:

When faced by a motion for summary judgment, a plaintiff has the duty to show that a genuine fact issue is present.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202, 4 Fed. R. Serv.3 d 1041 (1986);Whalen v. City of Atlanta, 539 F.Supp. 1202(N. D. Ga.1982);Taylor v. Alson, 79 N.M. 643, 447 P.2 523, 29 A.L.R.3d 653(Ct. App.1968).The mere allegations of the complaint do not constitute proof sufficient to defeat a motion by defendant for summary judgment.Champion v. Artuz, 76 F.3d 483, 34 Fed. R. Serv. 3d 1124 (2d Cir. 1996);Epprecht v. Delaware Valley Machinery, Inc., 407 F.Supp. 315(E.D. Pa.1976).The requirement that a party opposing a motion for summary judgment set forth specific facts showing a genuine issue for trial applies to a plaintiff.Markwell v. General Tire & Rubber Co., 367 F.2d 748(7th Cir.1966).Summary judgment for a defendant is appropriate if the plaintiff fails to make a showing sufficient to establish the existence of an element essential to the case, and on which he or she will bear the burden of proof at trial.Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966(1999).

A plaintiff is not required to establish his or her opposition to a motion for summary judgment by a preponderance of...