Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00233-SMM Document 126 Filed 07/29/2005 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Patricia ELSTON,

) ) Plaintiff, ) ) v. ) ) WESTPORT INSURANCE CORP., et al.,) ) Defendants. ) _________________________________ )

No. CV-04-233-PHX-SMM MEMORANDUM OF DECISION AND ORDER

Pending before the Court are four dispositive motions: (1) a Motion for Summary Judgment on Basis That Third Party Administrator Owes No Duty to Plaintiff [Doc. No. 79], filed by Defendant Gallagher Bassett Services, Inc.; (2) a Motion for Summary Judgment Based on Elston's Bankruptcy Filings [Doc. No. 81], filed by both Defendants Gallagher Bassett and Westport Insurance Corp.; (3) Defendants' Motion for Dismissal of Plaintiff's Claims Based on Res Judicata, Collateral Estoppel and Accord and Satisfaction [Doc. No. 82]; and (4) Defendants' Motion for Summary Judgment Based on Plaintiff's Failure to Disclose Experts [Doc. No. 83]. In addition, Defendants have filed a Motion for Sanctions Arising from Plaintiff's Failure to Attend IPE [Doc. No. 80] After considering the arguments raised in the parties' briefs, the Court finds that oral argument would be unnecessary to resolve the issues raised by the five pending Motions. Consequently, the Court hereby issues the following Memorandum of Decision and Order.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

BACKGROUND Because the Court concludes Defendants' Motion for Summary Judgment Based on Elston's Bankruptcy Filings [Doc. No. 81] completely disposes of the instant case, here the Court only sets forth those undisputed facts which are relevant to establish the context of this lawsuit and which are necessary for resolution of the dispositive motion. In 1986, Plaintiff Patricia Elston filed for Chapter 7 voluntary bankruptcy petition in the United States Bankruptcy Court for the District of Arizona. [Defs.' Statement of Facts in Supp. of Motions #1 to 5 for Summ. J. & Sanctions ("DSOF") ¶ 65; Pl.'s Resp. to DSOF ("PSOF") ¶ 65; Pl.'s Statement of Facts in Resp. to Defs.' Mot. For Summ. J. Based on Pl.'s Bankruptcy Filing ("PSOFB") ¶ 65] The bankruptcy court granted her a discharge in that initial case the following year. [Id.] Plaintiff filed a second Chapter 7 bankruptcy in 1996; she was discharged the same year. [Id.] Plaintiff has worked as a paralegal, certified by the American Bar Association, for about 20 years, principally through self-employment. [DSOF ¶ 10-11; PSOF ¶ 10-11] She has been employed as an instructor at various paralegal schools. [DSOF ¶ 13; PSOF ¶ 13] Plaintiff claims that on May 2, 2002, while working as a director of legal affairs for Alpha Omega Publications ("Alpha Omega"), she injured her lower back while seated on the accounting department floor. [DSOF ¶ 1 & 2; PSOF ¶ 1 & 2] Plaintiff later asserted a back injury claim to Alpha Omega's worker's compensation carrier. [DSOF ¶ 4; PSOF ¶ 4] Alpha Omega was insured under a worker's compensation policy issued by Defendant Westport Insurance Corp. ("Westport"). [DSOF ¶ 5; PSOF ¶ 5] Defendant Gallagher Bassett Services, Inc. ("Gallagher Bassett") administered Plaintiff's worker's compensation claim on behalf of Westport. [DSOF ¶ 4; PSOF ¶ 4] On August 5, 2002, Defendants accepted Plaintiff's worker's compensation claim pursuant to a Notice of Claim Status. [DSOF ¶ 66; PSOF ¶ 66; PSOFB ¶ 66] However, on October 2, 2002, Defendants provided Plaintiff with a Notice of Suspension of her benefits, because she had either refused to submit to, or had obstructed, a medical examination. [DSOF ¶ 83; PSOF ¶ 83]

-2Case 2:04-cv-00233-SMM Document 126 Filed 07/29/2005 Page 2 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

By letter dated October 10, 2002, Plaintiff requested a hearing before the Industrial Commission of Arizona. [DSOF ¶ 84; PSOF ¶ 84] This letter contained allegations that Defendants had engaged in bad faith while handling her claim. [DSOF ¶ 101; PSOF ¶ 101] Plaintiff later asked the Industrial Commission, by letter dated October 31, 2002, for an expedited bad faith investigation. [DSOF ¶ 102; PSOF ¶ 102] The Industrial Commission failed to find grounds for assessing bad faith and/or unfair claims processing and practices as defined by A.A.C. R20-5-163. [DSOF ¶ 103; PSOF ¶ 103] An administrative law judge of the Industrial Commission issued a decision on April 7, 2003, holding that Gallagher Bassett had the statutory authority to suspend Plaintiff's benefits. [DSOF ¶ 87; PSOF ¶ 87] Plaintiff sent a letter to the Industrial Commission of Arizona on October 10, 2002. [DSOF ¶ 68; PSOF ¶ 68; PSOFB ¶ 68] In relevant part, the letter read, "Pursuant to A.R.S. § 23-930, I am hereby requesting an expedited investigation of bad faith acts by my employer and their insurance carrier, Gallagher Bassett for Westport Insurance Corp." [Id.] By letter dated January 8, 2003, Plaintiff wrote an attorney for Defendants that "I am hereby advising you that I am turning all these matters over to my attorney, Steve Ryan, for his files. If the providers and my reimbursements are not paid immediately . . . we will be filing a civil suit against your carrier." [DSOF ¶ 71; PSOF ¶ 71; PSOFB ¶ 71] Plaintiff made a demand for settlement upon Defendants' counsel in May 2003 for $20,000. [DSOF ¶ 76; PSOF ¶ 76; PSOFB ¶ 76] On June 12, 2003, Defendants offered $5,000. [Id.] Plaintiff refused this offer and withdrew her demand for $20,000. [Id.] On July 7, 2003, Plaintiff filed a third Chapter 7 voluntary bankruptcy petition in bankruptcy court. [DSOF ¶ 65; PSOF ¶ 65; PSOFB ¶ 65] At the time, Plaintiff's worker's compensation claim was pending. [Id.] As part of her third bankruptcy, Plaintiff completed and filed a "Debtor Questionnaire" dated July 12, 2003. [DSOF ¶ 78; PSOF ¶ 78; PSOFB ¶ 78] In response to a the question "Do you have any pending personal injury or class action claims for which litigation has not begun?" Plaintiff answered "No." [Id.] In a "Schedule B Personal Property" form, she answered a question essentially attesting under oath that she had no "contingent and unliquidated claims of -3Case 2:04-cv-00233-SMM Document 126 Filed 07/29/2005 Page 3 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

every nature, including tax refunds, counterclaims of the debtor and rights to set off claims." [DSOF ¶ 79; PSOF ¶ 79; PSOFB ¶ 79] Furthermore, in a "Statement of Financial Affairs" form, dated July 7, 2003, when asked to "List all suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy case," Plaintiff wrote "None." [DSOF ¶ 80; PSOF ¶ 80; PSOFB ¶ 80] In a "Motion for Waiver of Appearance," filed with the bankruptcy court on July 7, 2003, Plaintiff wrote that "she has become disabled as a result of a severe back injury sustained in her former employment in 2002." [Pl.'s Additional Statement of Facts in Resp. to Defs.' Mot. For Summ. J. Based on Pl.'s Bankruptcy Filing ("PASOFB") ¶ 1; Defs.' Resp. to PASOFB ("DR") ¶ 1] In a "Statement of Debtor Attachment to Statement of Financial Affairs," Plaintiff wrote that her Chapter 7 bankruptcy filing was made "solely as a result of a severe back injury and result of permanent disability sustained on the debtor's last job . . ." [PASOFB ¶ 2; DR ¶ 2] In a letter dated July 12, 2003 to the bankruptcy trustee, Plaintiff made comparable statements, adding that she was "still awaiting rehabilitative medical care under my workers compensation claim (this claim does not include compensation benefits)." [PASOFB ¶ 3; DR ¶ 3] In an August 21, 2003 Motion for Reconsideration filed with the bankruptcy court, she wrote that "Discussion of the [Defendants'] conduct is ongoing with legal counsel for the purposes of contingent representation and action." [PASOFB ¶ 4] On October 30, 2003, the bankruptcy court granted Plaintiff a discharge. [DSOF ¶ 65; PSOF ¶ 65; PSOFB ¶ 65] The next day, Gallagher Bassett offered Plaintiff $20,000 to resolve her claims on behalf of Westport. [DSOF ¶ 77; PSOF ¶ 77; PSOFB ¶ 77] Plaintiff's counsel rejected the offer, telling Gallagher Bassett's attorney that he was close to filing a complaint for bad faith on his client's behalf. [Id.] Plaintiff is seeking to reopen her most recent bankruptcy case, in order to discharge taxes owed to the Internal Revenue Service for 1997, 1998, and 1999. [DSOF ¶ 119; PSOF ¶ 119] By letter dated October 25, 2004, Plaintiff informed the IRS that she had "petitioned the U.S. Bankruptcy Court" to reopen her case for this purpose. [Id.]

-4Case 2:04-cv-00233-SMM Document 126 Filed 07/29/2005 Page 4 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff filed suit in Maricopa County Superior Court on January 6, 2004, alleging that her worker's compensation claim had been handled in such a manner so as to have allegedly "breached the duty of good faith and fair dealing" of Westport's policy. [Doc. No. 1] Specifically, Plaintiff alleged that Defendants (1) failed to handle or administer her claim in a timely manner; (2) failed to timely compensate and/or reimburse her for covered bills and expenses; (3) failed to give her equal consideration as compared to the interests of Defendants; (4) knowingly hired and retained a biased medical doctor to perform an independent medical examination, knowing, or having reason to know, that the doctor would provide Defendants with an opinion or opinions that would allow Defendants to reduce their financial liability to Plaintiff; and (5) failed to timely and/or reasonably allow Plaintiff to receive medical treatment and rehabilitation consistent with her health needs and the recommendations of her treating physicians. Plaintiff sought relief from both Defendants for all unpaid worker's compensation benefits (medical, financial, or otherwise) owed; for damages for her exacerbated and increased injuries and disabilities resulting from Defendants' misconduct; for emotional stress, anxiety, and frustration; for her costs and expenses incurred; and for other relief deemed just and proper by the court. The action was removed to this Court on February 2, 2004. [Doc. No. 1] On November 30, 2004, Westport moved for summary judgment on Plaintiff's Complaint for bad faith breach of Westport's worker's compensation policy. [Doc. No. 49] The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332(a)(1), because the Plaintiff is a citizen of Arizona, Defendants are both foreign corporations, and the amount in controversy exceeds $75,000. STANDARD OF REVIEW A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, "show that there is 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines -5Case 2:04-cv-00233-SMM Document 126 Filed 07/29/2005 Page 5 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also Jesinger, 24 F.3d at 1130. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. The dispute must also be genuine, that is, the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Id.; see Jesinger, 24 F.3d at 1130. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24. Summary judgment is appropriate 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. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. See Celotex, 477 U.S. at 317. The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e); see Matsushita Elec. Indus. Co. v.Zenith Radio, 475 U.S. 574, 585-88 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). DISCUSSION Defendants argue they are entitled to summary judgment on Plaintiff's Complaint, because Plaintiff received a discharge under Chapter 7 in 2003 from the bankruptcy court without disclosing both her pending worker's compensation claim proceedings and her potential bad faith tort action against Defendants. Plaintiff's failure to disclose these facts to the bankruptcy court divests her of standing to bring suit in this Court for bad faith, according to Defendants, because the claim was an asset of Plaintiff's bankruptcy estate, which should have been brought on her behalf by the trustee. As a result, Defendants move this Court to judicially estop Plaintiff from proceeding further with the instant action. Plaintiff counters that she did in fact disclose her worker's compensation claim during the bankruptcy proceedings. Plaintiff claims that she told both the presiding bankruptcy judge -6Case 2:04-cv-00233-SMM Document 126 Filed 07/29/2005 Page 6 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and the trustee about her work-related injuries as well as her claim. Consequently, Plaintiff argues that Defendants' Motion is "frivolous." In federal court, federal law generally governs the application of judicial estoppel. Qwest Corp. v. City of Globe, Arizona, 237 F. Supp. 2d 1115, 1118 (D. Ariz. 2002). Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by asserting one position, and then later seeking an advantage by taking a clearly inconsistent position. Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600-601 (9th Cir. 1996). The United States Court of Appeals for the Ninth Circuit invokes judicial estoppel not only to prevent a party from gaining an advantage through inconsistent positions, but also because of "general consideration[s] of the orderly administration of justice and regard for the dignity of judicial proceedings," and to "protect against a litigant playing fast and loose with the courts." Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990). However, the Ninth Circuit restricts the application of judicial estoppel to cases where the court relied on, or "accepted," the party's previous inconsistent position. Interstate Fire & Cas. Co. v. Underwriters at Lloyd's, 139 F.3d 1234, 1239 (9th Cir. 1998). The Ninth Circuit has held that a party may be judicially estopped from asserting a cause of action that was not raised in a prior bankruptcy reorganization plan or otherwise mentioned in the debtor's schedules or disclosure statements. Hay v. First Interstate Bank of Kalispell, N.A., 978 F.2d 555, 557 (9th Cir. 1992) (debtor's failure to communicate its pre-confirmation discovery of insider self-dealing to the bankruptcy court estopped post-confirmation prosecution). "Judicial estoppel will be imposed when the debtor has knowledge of enough facts to know that a potential cause of action exists during the pendency of the bankruptcy, but fails to amend his schedules or disclosure statements to identify the cause of action as a contingent asset." Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 785 (9th Cir. 2001) (citing Hay, 978 F.2d at 557). Generally, courts consider three permissive factors in determining whether to apply the doctrine of judicial estoppel. See, e.g., Hamilton, 270 F.3d at 782-86 (citing and applying New Hampshire v. Maine, 532 U.S. 742 (2001)). Judicial estoppel is appropriate when (1) a party's -7Case 2:04-cv-00233-SMM Document 126 Filed 07/29/2005 Page 7 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

later position is "clearly inconsistent" with its earlier position; (2) the party has successfully persuaded a court to adopt the earlier position, so that judicial acceptance of an inconsistent position in a subsequent proceeding would create a perception that the party was misleading the judiciary; and (3) the party will receive an unfair advantage, or impose an unfair detriment on the adverse party, if not estopped. Id. The Court finds that Plaintiff must be estopped from asserting her claims for bad faith against Defendants. First, Plaintiff has taken "clearly inconsistent" positions in the bankruptcy case and the instant action. In her bankruptcy schedules and related filings, Plaintiff failed to list both her pending worker's compensation claim proceedings and her potential bad faith tort action against Defendants as assets of the estate. This did not prevent her, however, from filing suit in Maricopa County Superior Court against Defendants for claims related to bad faith. The Ninth Circuit has held that this constitutes "clearly inconsistent" positions for purposes of judicial estoppel. See Hamilton, 270 F.3d at 784 (plaintiff's failure to list claims against his insurance company as assets on his bankruptcy schedules, and then later suing the insurer on the same claims, were "clearly inconsistent" positions). As already discussed in the factual background, Plaintiff was well aware that she had a potential bad faith claim, and had even received a $5,000 settlement offer, before she filed her third Chapter 7 bankruptcy. Nevertheless, Plaintiff maintains she told the bankruptcy judge and trustee about her work-related injuries as well as her claim. As evidence, she points to a bankruptcy court filing in which she said that "she has become disabled as a result of a severe back injury sustained in her former employment in 2002." [PASOFB ¶ 1] Plaintiff also points to a bankruptcy filing and a letter to the trustee in which she stated that her work-related injuries were the sole reason for her latest Chapter 7 bankruptcy, and that she had made a worker's compensation claim. [PASOFB ¶ 2 & 3] In a Motion for Reconsideration to the bankruptcy trustee and judge, she did write that "Discussion of the [Defendants'] conduct is ongoing with legal counsel for the purposes of contingent representation and action." [PASOFB ¶ 4] Plaintiff also submits an affidavit in which she claims she advised the bankruptcy trustee and judge of her pending

-8Case 2:04-cv-00233-SMM Document 126 Filed 07/29/2005 Page 8 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

worker's compensation claim in writing and telephone conversations and that her purpose was not to mislead those involved in her bankruptcy proceedings. [PASOFB ¶ 6] The Court is not persuaded by these arguments, which attempt to distinguish the controlling precedent of Hamilton. Plaintiff was required under the bankruptcy code to file a schedule of assets and liabilities and amend those schedules as necessary, because both the bankruptcy court and her creditors relied on her disclosure statements and schedules. See 11 U.S.C. § 521(1); 11 U.S.C. § 1125(b); see also Hamilton, 270 F.3d at 784-85 ("The debtor's duty to disclose potential claims as assets does not end when the debtor files schedules, but instead continues for the duration of the bankruptcy proceeding."). That Plaintiff may have hinted at a possible bad faith claim sporadically in communications with the bankruptcy trustee and the judge was not sufficient to meet her obligations to creditors as a bankruptcy debtor, nor is it sufficient now to avoid a conclusion that she took inconsistent positions. Cf. In re Rooster, Inc., 127 B.R. 560, 573 (Bankr. E.D. Pa. 1991) (sufficient disclosure where all creditors informed of asset both in disclosure statement and debtor's initial schedule of assets, even though neither the approved disclosure statement sent to creditors nor the confirmed plan expressly provided for litigation after confirmation). Defendants made a $5,000 settlement offer just a month before Plaintiff filed for bankruptcy in July 2003. Despite her knowledge of this fact, despite her prior experiences in the bankruptcy court, and despite her training as a paralegal, the potential asset and the potential bad faith claim never appeared on any of Plaintiff's bankruptcy schedules or disclosures. See Hamilton, 270 F.3d at 785 ("Judicial estoppel will be imposed when the debtor has knowledge of enough facts to know that a potential cause of action exists during the pendency of the bankruptcy, but fails to amend his schedules or disclosure statements to identify the cause of action as a contingent asset."). Moreover, Plaintiff knew that she could petition the bankruptcy court to reopen her most recent bankruptcy proceeding to discharge back taxes owed to the IRS, but somehow failed to realize that she could do the same to disclose her bad faith claim against Defendants. Finally, the Court does not find that the facts pointed out by Plaintiff create a genuine issue of material fact which would preclude summary judgment. -9Case 2:04-cv-00233-SMM Document 126 Filed 07/29/2005 Page 9 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Second, Plaintiff successfully persuaded the bankruptcy court to adopt her position. See Hamilton, 270 F.3d at 784 (court said to have accepted position when it relied on debtor's failure to include claims against insurer as assets and then granted discharge of debts). The Ninth Circuit has said that a bankruptcy court need not actually discharge debts before the second prong of the judicial estoppel inquiry is satisfied. Id. In the instant case, however, the case for judicial estoppel is strengthened by the fact that the bankruptcy court granted Plaintiff a third Chapter 7 discharge, even though she represented that she had no "pending personal injury or class action claims for which litigation has not begun," had no "contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor and rights to set off claims," and was not a party to any "administrative proceedings . . . within one year immediately preceding the filing of this bankruptcy case." Furthermore, the trustee involved in Plaintiff's third bankruptcy case has said in an affidavit that he would have required additional information from Plaintiff, if he had been informed that Plaintiff believed she had a bad faith claim or had received settlement offers. (Urlich Aff. ¶ 5) The trustee also said that he would have advised Plaintiff that her claims should be listed on her Official Form Schedules, if he had received information from Plaintiff as to her having claims or potential claims for bad faith against Defendants. (Id.) Third, and finally, judicial estoppel is appropriate when the party will receive an unfair advantage if not estopped. Here, Plaintiff essentially would profit twice by improperly withholding information about her bad faith claim from the bankruptcy court, if the Court allowed this case to proceed beyond the summary judgment stage­she would have the Chapter 7 discharge of her debts and whatever judgment or settlement would come from the instant action. This advantage would be unfair to her creditors. See Hamilton, 270 F.3d at 785. Thus, the third factor favors judicial estoppel as well. For these reasons, the Court finds that summary judgment in favor of Defendants is appropriate. The Court therefore will grant Defendants' Motion for Summary Judgment Based on Elston's Bankruptcy Filings.

- 10 Case 2:04-cv-00233-SMM Document 126 Filed 07/29/2005 Page 10 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CONCLUSION The Court has found that Plaintiff's failure to disclose her potential bad faith claim against Defendants as an asset during her contemporaneous bankruptcy proceedings estops her from bringing suit now against Defendants in this Court. As a result, summary judgment in Defendants' favor is appropriate. Consequently, the Court need not address Defendants' other pending Motions for Summary Judgment as they are moot.1 Accordingly, IT IS ORDERED that Defendants' Motion for Summary Judgment Based on Elston's Bankruptcy Filings [Doc. No. 81] is GRANTED. IT IS FURTHER ORDERED that Defendant Gallagher Bassett's Motion for Summary Judgment on Basis That Third Party Administrator Owes No Duty to Plaintiff [Doc. No. 79] is DENIED AS MOOT. IT IS FURTHER ORDERED that Defendants' Motion for Sanctions Arising from Plaintiff's Failure to Attend IPE [Doc. No. 80] is DENIED AS MOOT. IT IS FURTHER ORDERED that Defendants' Motion for Dismissal of Plaintiff's Claims Based on Res Judicata, Collateral Estoppel and Accord and Satisfaction [Doc. No. 82] is DENIED AS MOOT. IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment Based on Plaintiff's Failure to Disclose Experts [Doc. No. 83] is DENIED AS MOOT. IT IS FURTHER ORDERED that Defendants' request for oral argument on its Motions is DENIED as unnecessary. // //
Defendants concurrently filed a Motion for Sanctions [Doc. No. 80], based on Plaintiff's failure to attend a court-ordered Independent Psychiatric Evaluation ("IPE"). By Minute Entry dated January 13, 2005, the Court had warned Plaintiff that failure to attend the scheduled IPE could result in dismissal of those claims for psychological or emotional damages. It is undisputed that Plaintiff did not attend. The Court notes without deciding that Plaintiff willfully failed to comply with the Order and intentionally disobeyed the Court in the face of sanctions. Sanctions, including partial dismissal and assessment of costs, would have been appropriate under Rule 37 of the Federal Rules of Civil Procedure had the Court not resolved the case on other grounds. See Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004); see also Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983).
1

- 11 Case 2:04-cv-00233-SMM Document 126 Filed 07/29/2005 Page 11 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly and terminate this action.

DATED this 28th day of July, 2005.

- 12 Case 2:04-cv-00233-SMM Document 126 Filed 07/29/2005 Page 12 of 12