Butters v. Travelers Home & Marine Ins. Co.

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VINCENT D. BUTTERS, Plaintiff, v. THE TRAVELERS HOME AND MARINE INSURANCE COMPANY, Defendant.

No. 3:22-cv-00726-SB

United States District Court, D. Oregon

April 22, 2024

FINDINGS AND RECOMMENDATION

Hon Stacie F. Beckerman, United States Magistrate Judge

Vincent Butters (“Plaintiff”) filed this action against his homeowners policy insurer, The Travelers Home and Marine Insurance Company (“Defendant”), alleging claims for fraudulent misrepresentation and negligence per se. Defendant moves for summary judgment on both claims. (ECF No 69.)

The Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1), but not all parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C § 636. For the reasons explained below, the Court recommends that the district judge grant Defendant's motion for summary judgment.^[1]

LEGAL STANDARDS

Summary judgment is proper if “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). At the summary judgment stage, the court views the facts in the light most favorable to the non-moving party, and draws all reasonable inferences in favor of that party. See Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 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) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

PRELIMINARY MATTERS

Before turning to the parties' arguments regarding the merits of Plaintiff's claims, the Court must address two preliminary matters: (1) this district's conferral requirement, and (2) Defendant's evidentiary objections. (See Pl.'s Resp. Opp'n Def.'s Mot. Summ J. (“Pl.'s Resp.”) at 1-3, ECF No. 73; Def.'s Reply Mem. Supp. Mot. Summ. J. (“Def.'s Reply”) at 1-5, ECF No. 74.)

I. CONFERRAL REQUIREMENT

Plaintiff argues that the Court should deny Defendant's motion for summary judgment because Defendant failed to confer in good faith before filing its motion. (Pl.'s Resp. at 1-3.) The Court declines to recommend that the district judge deny Defendant's motion on this ground.

Local Rule 7-1(a) provides, in relevant part, that “the first paragraph of every motion must certify that . . . the parties made a good faith effort through personal or telephone conferences to resolve the dispute and have been unable to do so.” LR 7-1(a)(1)(A). Local Rule 7-1(a) also provides that “[t]he Court may deny any motion that fails to meet this certification requirement.” LR 7-1(a)(3).

During the parties' initial case management conference, the Court waived the local rule “requirement to confer by telephone,” and advised that “the parties may confer by electronic mail going forward.” (ECF No. 29.) Consistent with this understanding, Defendant certified that it made a “good faith effort . . . to confer with Plaintiff concerning the issues raised in [its] motion, by email on October 31, 2023,” but “[t]he parties were unable to resolve those issues[.]” (Def.'s Mot. Summ. J. (“Def.'s Mot.”) at 1, ECF No. 69; Suppl. Decl. David Ryan Supp. Def.'s Mot. Summ. J. (“Suppl. Ryan Decl.”) ¶ 2, ECF No. 75; id. Ex. 123 at 1, attaching the October 31, 2023 conferral email).

Plaintiff argues that Defendant did not make a good faith effort to confer because it waited until “the last possible date” (i.e., October 31, 2023, the dispositive motions deadline), and filed its motion three hours after emailing Plaintiff. (See Pl.'s Resp. at 2, referring to ECF Nos. 56, 69.) Plaintiff adds that Defendant “made sure that the . . . parties [would not] be able to properly confer by providing an impossibly narrow window of time for [the parties] to do so.” (Pl.'s Resp. at 2.)

The Court concludes that Defendant's conferral attempt was sufficient under the circumstances presented. It is not uncommon for parties to wait until the dispositive motions deadline to confer on and file summary judgment motions. Plaintiff claims that Defendant's actions “denied him the potential benefits of a conferral,” but does not appear to dispute that he received Defendant's email or explain why he did not (or could not) respond on October 31, 2023. (See Pl.'s Resp. at 1-3.) In any event, the Court is persuaded that additional efforts to confer would have been futile, in part because when Defendant filed its motion for summary judgment, Plaintiff's motion for judgment on the pleadings (i.e., a motion seeking judgment in Plaintiff's favor on the same underlying claims) was still pending before this Court. See generally Gerke v. Travelers Cas. Ins. Co. of Am., 815 F.Supp.2d 1190, 1200 (D. Or. 2011) (declining to deny the defendant's motion on the ground that it failed to satisfy the conferral requirement and noting that the court was “persuaded that additional efforts to confer . . . would have been futile,” in part because of the parties' well-documented disagreement on the subject matter).

For these reasons, the Court declines to recommend that the district judge deny Defendant's motion on the ground that Defendant failed adequately to satisfy the conferral requirement.

II. EVIDENTIARY OBJECTIONS

Defendant raises evidentiary objections regarding the 89-page exhibit that Plaintiff attached to his response. (See Def.'s Reply at 1-5; Pl.'s Ex. 1 at 1-89, ECF No. 73-1, which is Bates-stamped as “TRAV000001” through “TRAV000089”). The Court overrules Defendant's objections.

A. Plaintiff's Exhibit 2

The Court overrules as moot Defendant's objection to Plaintiff's “Exhibit 2.” (See Def.'s Reply at 2.) In his response, Plaintiff cited “Exhibit 2” in support of his statement that Defendant sent an “estimate and payment” to Plaintiff's husband on February 21, 2022, the latter of which “included money for a dumpster, debris bags, and laborers to remove the items that were not salvageable from the property.” (Pl.'s Resp. at 6.) Defendant objected to Plaintiff's “Exhibit 2” on the ground that it was “not part of the record,” noting that “[t]his missing/untimely exhibit (if it exists)-along with related argument-should be stricken[.]” (Def.'s Reply at 3.) In accordance with Local Rule 56-1(b), Plaintiff filed a surreply on December 12, 2013, explaining that his reference to “Exhibit 2” was a typographical error and he intended only to cite “[E]xhibit 1” (i.e., the 89-page attachment) in support of his statement regarding the check that Defendant sent to his husband. (Pl.'s Surreply Opp'n Def.'s Mot. Summ. J (“Pl.'s Surreply”) at 4, ECF No. 76.) Given this clarification, the Court overrules as moot Defendant's objections about a “missing/untimely exhibit.”

B. Plaintiff's Exhibit 1

Defendant objects to Plaintiff's 89-page exhibit, which Plaintiff cites as “Exhibit 1” and is Bates-stamped as “TRAV000001” through “TRAV000089.” (See Def.'s Reply at 1-2, 4-5; Pl.'s Resp. at 6; Pl.'s Ex. 1 at 1, 89.) The Court overrules Defendant's objections.

1. Authenticity

As the parties acknowledge, Plaintiff's Exhibit 1 is the “claim notes [that Defendant] produced . . . in response to [P]laintiff's discovery requests.” (See Def.'s Reply at 4, stating as much and adding that Exhibit 1 is “comprised of a string of claim notes running from January 24, 2022 to May 2, 2023”; see also Pl.'s Surreply at 3, representing that “Exhibit 1” consists of “documents [that Defendant] produced during discovery”). Given this fact and in accordance with Ninth Circuit case law, Defendant does not challenge the authenticity of Exhibit 1. (See Def.'s Repyl at 4, citing Maljack Prods., Inc. v. Good Times Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir.1996)); cf. Maljack, 81 F.3d at 889 n.12 (“MPI claims the district court should not have considered MPI documents which were attached to the declaration of GoodTimes' attorney, because the attorney could not authenticate them. The district court did not err in considering the documents as indicators of MPI's motivation, however; MPI produced the documents to GoodTimes, many of the documents were on MPI letterhead and MPI does not contest their authenticity.”); see also 31 Charles Alan Wright et al., Federal Practice and Procedure § 7105 (2d ed. Aug. 2023 update) (“Authentication can . . . be accomplished through judicial admissions such as stipulations, pleadings, and production of items in response to subpoena or other discovery request.”).

2. Relevance and Prejudice

Although it does not challenge Exhibit 1's authenticity, Defendant objects to Exhibit 1 on “[r]elevance/[p]rejudice” grounds. (See Def.'s Reply at 4-5.) Defendant's relevance/prejudice objection is based on the fact that Exhibit 1 includes claim notes about policy benefits that “have never been at issue in this action,” or “not been at issue since the Court dismissed all contract claims.” (Id.)

The foregoing is no more than a relevancy objection. (See id. at 5, adding only that “[t]here is no longer any relevance to the notes referring to contract benefits”). As the Ninth Circuit has explained, relevancy objections are generally unnecessary at the summary judgment stage:

[O]bjections for relevance are generally unnecessary on summary judgment because they are “duplicative of the summary judgment standard itself.” Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006) .... On summary judgment, a court must determine whether the evidence viewed in the light most favorable to the non-moving party creates a “genuine dispute as to any

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