Unigestion Holding, S.A. v. UPM Tech.

• Decision Date: 29 July 2022
• Docket Number: 3:15-cv-185-SI
• Parties: UNIGESTION HOLDING, S.A., dba DIGICEL-HAITI, Plaintiff, v. UPM TECHNOLOGY, INC. and DUY BRUCE TRAN, Defendants.
• Court: U.S. District Court — District of Oregon

UNIGESTION HOLDING, S.A., dba DIGICEL-HAITI, Plaintiff, v. UPM TECHNOLOGY, INC. and DUY BRUCE TRAN, Defendants.

No. 3:15-cv-185-SI

United States District Court, D. Oregon

July 29, 2022

Robert C.L. Vaughan, Cherine Smith Valbrun, Leah B. Storie, and Anisha Carla Atchanah, KIM VAUGHAN LERNER LLP, Anne M Talcott, Kathryn E. Kelly, Andrew J. Lee, and Sara Kobak SCHWABE, WILLIAMSON & WYATT PC, and. Of Attorneys for Plaintiff.

Christopher W. Savage, DAVIS WRIGHT TREMAINE LLP, and Kathryn P. Salyer, Eleanor A. DuBay, and Blake Van Zile, TOMASI BRAGAR DUBAY, Of Attorneys for Defendants.

OPINION AND ORDER ON DIGICEL-HAITI'S MOTIONS FOR SUMMARY JUDGMENT AGAINST UPM'S COUNTERCLAIMS AND TO EXLUDE UPM'S EXPERT WITNESS, AND UPM'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Michael H. Simon, District Judge.

In its Third Amended Complaint (ECF 200), Unigestion Holding, S.A., dba Digicel-Haiti, Inc. (Digicel-Haiti) alleges fraud, conversion, and unjust enrichment against UPM Technology, Inc. (UPM) and Duy Bruce Tran.^[1] In UPM's Amended Answer, Affirmative Defenses, and Counterclaims (ECF 244), UPM asserts six counterclaims-one based on a federal statute and five based on Oregon common law. As its first counterclaim (with five counts), UPM alleges violations of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151 et seq. (the Communications Act). For its remaining counterclaims, UPM alleges breach of implied-in-fact contract, money had and received, conversion, unjust enrichment, and intentional interference with prospective economic advantage.

On January 18, 2022, the Court granted in part UPM's motion for summary judgment, which significantly narrowed the scope of Digicel-Haiti's claims and potential recovery.

ECF 294. The Court also bifurcated this lawsuit into two phases. During Phase I, the Court planned to consider Digicel-Haiti's claims against UPM. During Phase II, the Court planned to consider UPM's counterclaims against Digicel-Haiti. Id. at 37-39. On July 26, 2022, the Court granted Digicel-Haiti's informal letter request to lift the bifurcation order. ECF 383.

The Court previously had scheduled a jury trial on Phase I to begin April 4, 2022. At the Phase I pretrial conference held on March 29, 2022, Digicel-Haiti announced that it could not likely meet its evidentiary burden to establish damages under the narrowed scope that the Court imposed. See ECF 379, at 35, 64 (Transcript from Hearing on March 29, 2022). After that hearing, Digicel-Haiti filed a motion for reconsideration of the Court's decision of January 18, 2022, and alternative motions to certify an interlocutory appeal to the Ninth Circuit under 28 U.S.C. § 1292(b) or certify questions to the Oregon Supreme Court under Or. Rev. Stat. § 28.200. On July 13, 2022, the Court denied Digicel-Haiti's motions. ECF 380.

The Court also previously had scheduled a Phase II jury trial to begin November 14, 2022, but after lifting the bifurcation order, all remaining issues that are appropriate for trial will now be decided at the November trial. There are, however, additional preliminary matters that need to be resolved. In this Opinion and Order, the Court addresses the following motions: (1) Digicel-Haiti's motion for summary judgment against UPM's six counterclaims (ECF 264); (2) Digicel-Haiti's motion to exclude the testimony of UPM's expert witness Joseph Gillan (ECF 272); and (3) UPM's motion for partial summary judgment on portions of its first counterclaim (ECF 255).

STANDARDS

A. Summary Judgment

Rule 56(a) of the Federal Rules of Civil Procedure states that a party is entitled to summary judgment 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). The moving party has the burden of establishing the lack of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient ....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986).

“Where the record taken as a whole could not lead a rational trier of fact to find for the non moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

The first sentence of Rule 56(a) provides: “A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought.” Fed.R.Civ.P. 56(a) (emphasis added). The 2010 Advisory Committee explains that this sentence was “added to make clear at the beginning that summary judgment may be requested not only as to an entire case but also as to a claim, defense, or part of a claim or defense.” Fed.R.Civ.P. 56(a) advisory committee's note to 2010 amendment; see also Minority Police Officers Ass'n of S. Bend v. City of S. Bend, Ind., 721 F.2d 197, 200 (7th Cir. 1983) (“The word ‘judgment' in the term ‘partial summary judgment' is a misnomer. A partial summary judgment is merely an order deciding one or more issues in advance of trial; it may not be a judgment at all, let alone a final judgment on a separate claim.”).

Further, Rule 56(g) states: “If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact-including an item of damages or other relief-that is not genuinely in dispute and treating the fact as established in the case.” Fed.R.Civ.P. 56(g) (emphasis added). As explained by the 2010 Advisory Committee, “the court may decide whether to apply the summary-judgment standard to dispose of a material fact that is not genuinely in dispute.” Fed.R.Civ.P. 56(g) advisory committee's note to 2010 amendment. Finally, even if “the court believes that a fact is not genuinely in dispute it may refrain from ordering that the fact be treated as established. The court may conclude that it is better to leave open for trial facts and issues that may be better illuminated by the trial of related facts that must be tried in any event.” Id.

B. Expert Testimony

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. It provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

“Under Daubert^[2] and its progeny, including Daubert II,^[3] a district court's inquiry into admissibility is a flexible one.” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014) (citing Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013)). In evaluating proffered expert testimony, the trial court is “a gatekeeper, not a fact finder.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (quotation marks omitted). “[T]he trial court must assure that the expert testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 564 (quotation marks omitted). “Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline.” Id. at 565 (quotation marks omitted). “Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” Id. at 564. The judge must “screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable.” City of Pomona, 750 F.3d at 1043 (quoting Alaska Rent-A-Car, 738 F.3d at 969). In short, “[t]he district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.” Id. at 969-70 (alteration in original) (quoting Alaska Rent-A-Car, 738 F.3d at 969-70).

Further, the court must assess an expert's reasoning or methodology, using, when appropriate, criteria such as testability, publication in peer-reviewed literature, known or potential error rate, and general acceptance. See Est. of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463-64 (9th Cir. 2014) (en banc). But these factors are “meant to be helpful, not definitive, and the trial court has discretion to decide how to test an expert's reliability as well as whether the testimony is reliable, based on the particular circumstances of the particular case.” Primiano, 598 F.3d at 564 (citations and quotation marks omitted).

The test “is not the correctness of the expert's conclusions but the soundness of his methodology.” Primiano, 598 F.3d at 564 (quotation marks omitted). “The objective of [Daubert's gatekeeping requirement] is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert whether basing testimony upon professional...