Woods v. Protection One Alarm Monitoring, Inc.

Decision Date22 August 2007
Docket NumberNo. 1:06-CV-00398-SMS.,1:06-CV-00398-SMS.
Citation628 F.Supp.2d 1173
PartiesRobert and Lori WOODS, Plaintiffs, v. PROTECTION ONE ALARM MONITORING, INC., and Asset Resources, Inc., Defendants.
CourtU.S. District Court — Eastern District of California

P. Michael Pekin, Law Office of Michael Pekin, Salinas, Ca, for Plaintiffs.

Christopher Jonathan Mundt, pro hac vice, Mundt Legal, P.L.L.C., Coon Rapids, MN, David Jay Kaminski, Edgar N. Devera, Carlson, Messer & Turner LLP, Alexander James Harwin, Lewis Brisbois Bisgaard and Smith, Los Angeles, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (DOCS. 38 AND 52)

ORDER RE: PROTECTION ONE ALARM MONITORING'S OBJECTIONS TO EVIDENCE AND REQUEST TO STRIKE EVIDENCE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT (DOC. 62-2)

ORDER RE: PROTECTION ONE ALARM MONITORING'S REQUEST & AMENDED REQUEST FOR JUDICIAL NOTICE (DOCS. 52-7, 62-3)

SANDRA M. SNYDER, United States Magistrate Judge.

Plaintiffs are proceeding with a civil action in this Court. By order dated August 30, 2006, entered upon the parties' consent, Judge Oliver W. Wanger assigned this action to the undersigned Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73(b), and Local Rule 73-301.

I. Introduction

Pending before the Court for determination are two motions for summary judgment filed by Defendants Protection One Alarm Monitoring, Inc. (POAM) and Asset Resources, Inc. (AR), respectively, along POAM's objections to evidence and request to strike evidence filed in opposition to its motion for summary judgment, and POAM's request and amended request for judicial notice.

Defendant AR filed its motion for summary judgment and memorandum of points and authorities on March 2, 2007. On April 26, 2007, Plaintiff filed a memorandum with affidavits of Michael Pekin, Shirley Hable, and Plaintiff Lori Woods and related exhibits in opposition to Defendant AR's motion. On May 21, 2007, further briefing and filing of legible and authenticated copies were ordered concerning exhibits submitted by AR. AR filed a reply on May 30, 2007, including a memorandum and numerous declarations and affidavits as well as cross-references and exhibits.

Defendant POAM filed a motion for summary judgment on April 30, 2007, including a memorandum of points and authorities, statement of undisputed facts, request for judicial notice, and declarations of Mary Moorman, Steven Petersen, and Alexander J. Harwin. Plaintiff filed opposition to this motion on May 10, 2007, including a memorandum and the affidavits of P. Michael Pekin, Plaintiff Lori Woods, Barbara Williamson, and Shirley Hable and related exhibits. On June 7, 2007, POAM filed a reply, including a memorandum, objections to evidence and request to strike, and an amended request for judicial notice.

The hearing on the motions was held on Friday, June 15, 2007, before the Honorable Sandra J. Snyder, United States Magistrate Judge. Plaintiffs were represented by Attorney Michael Pekin, who was present in court. Attorney Christopher J. Mundt, representing Defendant Asset Resources, Inc., appeared telephonically; and Alexander J. Harwin, representing Protection One Alarm Monitoring, Inc., was present in court. After argument, the matter was taken under submission.

II. Background

This is a an action originally filed in state court on August 19, 2003. It was removed from the Superior Court of the State of California, County of Merced on April 6, 2006, based on diversity of citizenship. In ruling on both Defendants' motions to dismiss on December 21, 2006, 2006 WL 3782704, this Court dismissed the claims for breach of contract, violation of the California Consumer Credit Reporting Agencies Act, and the breach of contract by commission of the common law tort of libel. Plaintiffs' action now consists of a single claim for defamation against the Defendants POAM and AR.

The gist of the defamation consists of the continued presence in Equifax credit reports of derogatory information that was initially mistakenly furnished to Equifax by the Defendants. When notified by Plaintiffs of the incorrect information, Defendants investigated and communicated the mistake to Equifax. Equifax incorrectly informed Defendants that the matter had been corrected in Equifax's data bank, when in reality the derogatory information continued to be in Equifax's data bank because of Equifax's data processing error.

The record reveals that after this matter was filed in Merced County Superior Court in August 2003, Plaintiffs conducted no depositions and very little written discovery. During this time, POAM conducted depositions, one in Fargo, North Dakota, and two in Atlanta, Georgia. Plaintiffs did not appear personally at any of the depositions but did appear telephonically for the Atlanta depositions.

At the February 12, 2007, scheduling conference, the Court ordered Plaintiffs to conduct some type of discovery as to Defendant AR on or before March 1, 2007. Up to the time of the scheduling conference, the record reveals that Plaintiffs failed to serve AR with discovery requests of any nature. AR states that Plaintiffs have failed and refused to serve upon Defendant AR any discovery requests since the date of filing of this case. (AR Mot., Doc. 38, p. 5-6.)1

III. Summary Judgment

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It is the moving party's burden to establish that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. British Airways Board v. Boeing Co., 585 F.2d 946, 951 (9th Cir.1978).

Where a party with the ultimate burden of persuasion at trial as to a matter moves for summary judgment, it must demonstrate affirmatively by evidence each essential element of its claim or affirmative defense and must establish that there is no triable issue of fact as to each essential element such that a rational trier of fact could render a judgment in its favor. Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). If a party moves for summary judgment with respect to a matter as to which the opposing party has the ultimate burden of persuasion at trial, then the moving party must show that the opposing party cannot meet its burden of proof at trial by establishing that there is no genuine issue of material fact as to an essential element of the opposing party's claim or defense; the moving party must meet the initial burden of producing evidence or showing an absence of evidence as well as the ultimate burden of persuasion. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the opposing party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Id. (citing High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990)). In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact. Id.

However, "where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S.Ct. 2548.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n. 11, 106 S.Ct. 1348. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987), and that the dispute is genuine, i.e., the evidence is such that a...

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