United States of America v. International Fidelity Insurance Company et al

REPLY IN SUPPORT OF Renewed NOTICE OF MOTION AND MOTION for Judgment on Partial Findings, pursuant to FRCP 52

C.D. Cal.December 4, 2018

SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 Shutts & Bowen LLP Sarah Donini Rodriguez, Bar No. 72689 300 South Orange Avenue Suite 1600 Orlando, FL 32801 Telephone: (407) 423-3200 Facsimile: (407) 425-8316 Email: SRodriguez@shutts.com Attorneys for Plaintiff (Pro Hac Vice) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA United States of America, for the use and benefit of NASATKA BARRIER, INCORPORATED d/b/a NASATKA SECURITY, Plaintiff, v. International Fidelity Insurance Company, et al., Defendants. Case No. 2:16-cv-08064-DSF-AGR PLAINTIFF AND THIRD PARTY DEFENDANT’S JOINT REPLY IN SUPPORT OF RENEWED RULE 52(C) MOTION FOR PARTIAL JUDGMENT AND MEMORANDUM OF POINTS AND AUTHORITIES JUDGE: Hon. Dale S. Fisher PLAINTIFF AND THIRD-PARTY DEFENDANT’S JOINT REPLY IN SUPPORT OF RENEWED RULE 52(C) MOTION FOR PARTIAL JUDGMENT AND MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff, United States of America, for the use and benefit of NASATKA BARRIER, INCORPORATED d/b/a NASATKA SECURITY (“Nasatka”), jointly with NORTH AMERICAN SPECIALTY INSURANCE COMPANY (“NAS”), pursuant to Rule 52(c) of the Federal Rules of Civil Procedure, L.R. 52-3, and this Court’s November 16, 2018 Order (ECF Doc. #148), file this Reply in Opposition Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 1 of 14 Page ID #:3640 SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 - 2 - (hereafter “Reply”) to the Defendants’ and Cross-Claimants’1 Response (hereafter “Defendants’ Response”) to Plaintiff’s and Third Party Defendant’s Joint Renewed Rule 52(c) Motion for Partial Judgment (hereafter “Renewed Motion”). Plaintiff and Third-Party Defendant rely on the facts and law contained in their Renewed Motion as if fully set forth herein. However, Plaintiff and Third- Party Defendant file this Reply to address three distinct points raised in Defendants’ Response as follows: (a) Defendants’ Response completely ignores the Court’s Pre- Trial Orders on relevant Motions in Limine and misstates the effect of such rulings; (b) Defendants’ Response incorrectly asserts that they have “proffered” sufficient evidence of damages; and (c) Defendants’ Response inaccurately suggests that Defendants’ narratives, which this Court has not yet admitted or excluded, are sufficient to prove any damages. Each point will be addressed in turn below.2 1 Defendants CeSight Joint Venture (“CeSight”), InSight Environmental Engineering & Construction, Inc. (“InSight”) International Fidelity Insurance Company (“IFIC”), and Everest Reinsurance Company (“Everest”) are referred to collectively as “Defendants.” 2 The allegations set forth in pages 1-2 of Defendants’ Response are not relevant to the matter at hand, and instead attempt to summarize the merits of Plaintiff’s claims. Plaintiff will not address such allegations here as they are not pertinent to whether Partial Judgment pursuant to Rule 52(c) is proper, although Plaintiff posits that the evidence at trial, consistent with the pre-trial submission of Plaintiff and Third-Party Defendants’ Joint Proposed Findings of Fact and Conclusions of Law, supports Plaintiff’s claims and conversely, disproves Defendants’ positions. The issue at hand is simply that Defendants failed to produce or introduce any evidence of damages. Thus, even if, hypothetically, Defendants could prevail on the other aspects of their counterclaim, third-party claim, or affirmative defense of setoff, Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 2 of 14 Page ID #:3641 SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 - 3 - A. DEFENDANTS IGNORE AND MISCONSTRUE THIS COURT’S ORDER (ECF Doc. # 124) In Part B of their Response, Defendants allude to the only one or two times in this entire litigation where they have suggested they may seek damages (their own pleading), presumably in an attempt to present a possible excuse for their failure to introduce any evidence of damages at trial. (ECF Doc. #150, p. 5-6). However, the entire argument contained in Part B does nothing to rebut the facts and law in the Renewed Motion, and has absolutely no relevance to the pending Renewed Motion. Tellingly, nowhere in Part B do Defendants suggest that the trial record contains any evidence of their alleged damages. See id. But even worse, this portion of Defendants’ Response misconstrues this Court’s Order and the status of the case. First, Defendants suggest that “[d]during trial, Nasatka erroneously asserted that Insight claimed no damages, referring to the Insight’s Initial Disclosures.” (ECF Doc. #150, p. 5). This is simply not the case. Plaintiff did not complain about Defendants’ Initial Disclosures at trial, but rather objected when Defendants attempted to violate this Court’s Order (ECF Doc. #124). Instead, the facts of this case unfolded as follows: 1. On or about August 27, 2018, Plaintiff and Third-Party Defendant filed a comprehensive Motion in Limine requesting “an Order in limine, these claims and defenses would still fail as proof of damages is an essential element of each. Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 3 of 14 Page ID #:3642 SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 - 4 - preventing Defendants . . . from introducing the ‘summary of backcharges’ produced in discovery, or any similar document not produced in discovery, other previously undisclosed documents or testimony, either to support their defense to Plaintiff’s claims, or to substantiate any damages claim under the Counter-claim or affirmative defenses.” (ECF Doc. # 108 and # 119). 2. In summary, the Motion in Limine was based on the following facts: (a) Plaintiff served multiple Requests for Production seeking backup for any damages claimed by Defendants, and Defendants failed to produce any support (such as job cost reports, invoices, calculations, analyses, etc.); (b) Plaintiff’s counsel attempted to inquire as to any potential damages claim by Defendants during the depositions of the Defendants’ corporate representatives, but neither representative had any relevant knowledge;3 (c) Plaintiff’s counsel again requested that Defendants produce any 3 For ease of reference, relevant excerpts of the depositions at issue were filed as exhibits to Plaintiff’s Motion in Limine (ECF Doc. #108). While not relevant to the issue at hand, as the Motion in Limine has already been granted, and the depositions are not in evidence, Plaintiff points out that the deposition excerpts clearly disprove Defendant’s suggestion that the deponents testified “at length regarding the calculation of InSight/CeSight’s damages.” (See ECF Doc. #150, p. 4). Defendants offered no such testimony, and the Defendants’ corporate representatives both testified they did not know what damages Defendants were seeking or how any damages claim was calculated. (See ECF Doc. #108, p. 4-5, 10- 11, #108-C, #108-D). Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 4 of 14 Page ID #:3643 SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 - 5 - and all documents allegedly supporting any damages claim, such as job cost reports, project documents, financial analyses, calculations, invoices, reports, etc., but Defendants still failed to produce and such documents; (d) the “summary of backcharges” document or any similar documents could not meet the requirements of Rule 1006; and (e) that Defendants affirmatively represented in their Rule 26 Initial Disclosures that they were not seeking damages and never supplemented these Rule 26 disclosures. (See id.). Nasatka and NAS incorporate the content of ECF Doc. # 108 and # 119 as if fully recited herein. 3. Plaintiff’s Motion in Limine expressly stated it would be heard during the Final Pre-Trial Conference. (ECF Doc. #108, #119). This Court’s Trial Order also indicated that the Court would hear all motions in limine during the Final Pre-Trial Conference. (ECF Doc. #81, p. 4-5). Nevertheless, Defendants chose not to respond to the Motion in Limine prior to the Final Pre-Trial Conference. 4. At the September 17, 2018 Final Pre-Trial Conference, Defendants requested additional time to respond to this Motion in Limine and others. This Court graciously allowed Defendants until September 24, 2018 to respond to Nasatka’s pending motions. Although Defendants filed a response Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 5 of 14 Page ID #:3644 SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 - 6 - in opposition to another unrelated motion, they chose not to oppose the Motion in Limine ECF Doc. # 108, #119. 5. This Court granted Plaintiff’s Motion in Limine in its entirety. (ECF Doc. # 124), thus preventing Defendants “from introducing the ‘summary of backcharges’ produced in discovery, or any similar document not produced in discovery, other previously undisclosed documents or testimony, either to support their defense to Plaintiff’s claims, or to substantiate any damages claim under the Counter-claim of affirmative defenses.” 6. Defendants did not file any motions for rehearing, etc., or otherwise challenge this Court’s Order (ECF Doc. #124) at any time before or during trial. That Order, (ECF Doc. #124), governed the trial in this matter. Trial is over, evidence has been admitted or excluded, and the record is closed. The depositions alluded to in Defendants’ Response are not in evidence or part of the record, and are not relevant to the matter at hand. The time for Defendants to produce documents has long passed. Defendants’ feeble attempt to justify their failure to introduce evidence of damages at trial is irrelevant. Certainly, Defendants had ample time to produce documents, give deposition testimony, prepare witness narratives, and introduce into evidence any support for an award of damages. Defendants chose not to do so. Plainly, Defendants have failed throughout this litigation to offer any shred of admissible evidence to support Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 6 of 14 Page ID #:3645 SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 - 7 - any potential damages claim, and as a result, Defendants’ Counterclaim, Third- Party Claim, and Affirmative Defenses of Setoff fail as a matter of law. B. DEFENDANTS HAVE NOT “PROFFERED” SUFFICIENT EVIDENCE OF DAMAGES Defendants claim, on pages 4-5 of their Response, that they have “submitted sufficient evidence to support an award of damages.” (ECF Doc. #150, p. 4-5). This is not the case. At trial, no evidence by way of documentary proof was introduced to support any damages claim by the Defendants or tie any alleged damages to the conduct of Plaintiff in any way whatsoever. This is fatal to Defendants’ claim. Munoz v. Colvin, 10CV1003-MMA NLS, 2013 WL 2088519, at *1 (S.D. Cal. May 14, 2013) (granting Rule 52(c) motion made at the close of the non-movant’s case in bench trial for failure of non-movant to introduce sufficient evidence to support any damages claim); Ruiz v. Gap, Inc., 622 F. Supp. 2d 908, 917 (N.D. Cal. 2009), aff'd, 380 Fed. Appx. 689 (9th Cir. 2010) (“Under California law, a breach of contract claim requires a showing of appreciable and actual damage.”); HM Hotel Properties v. Peerless Indem. Ins. Co., CV12-0548 PHX-DGC, 2013 WL 4507602, at *4 (D. Ariz. Aug. 23, 2013), aff'd, 624 Fed. Appx. 520 (9th Cir. 2015) (where a party bearing the burden of proof at trial has failed to introduce evidence showing the existence of damages, an essential element of a claim, such claims fail as a matter of law). Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 7 of 14 Page ID #:3646 SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 - 8 - Furthermore, during trial, Defendants attempted to violate this Court’s order by trying to introduce “previously undisclosed . . . testimony . . . to substantiate any damages claim.” Plaintiff objected to those portions of Defendants’ Witness Narratives as follows: (a) Jim Martin: paragraph 15:17-25, (b) DonCosta Seawell, paragraph 23, (c) Aqeel Mohammed, paragraph 9:6-8 (hereafter “Defendants’ Damages Testimony”).4 Plaintiff posits that Defendants’ attempts to violate this Court’s Pre-Trial Orders do not constitute a proffer5 but are instead yet another attempt to “sand bag” Plaintiff at trial. The Court has not yet ruled on Plaintiff’s above-described objections. Pursuant to this Court’s prior order (ECF Doc. # 124), Defendants’ Damages Testimony should be excluded for the reasons set forth in ECF Doc. #108, #119. It would be wholly improper, incredibly prejudicial, and at variance with our civil trial process if Defendants were permitted to offer testimony into evidence which 4 Plaintiff objected to several portions of the Defendants’ witness narratives on multiple grounds, and this Court has not yet ruled on those objections. Plaintiff renews and incorporates those objections herein. 5 A proper proffer would have included an explanation of relevance, an explanation of why the evidence would be sufficient to prove a certain point, and an explanation of why the evidence is competent. See, Idaho & Oregon Land Imp. Co. v. Bradbury, 132 U.S. 509, 517 (1889) (explaining that if the proffered evidence is the only proof on point, the proponent may have to show that it is sufficient to prove that point.); Perkins v. Silver Mountain Sports Club & Spa, LLC, 557 F.3d 1141, 1147 (10th Cir. 2009) (defense failed to show how proffered evidence of misconduct could justify termination; proffer was inadequate) (no plain error); Phillips v. Hillcrest Medical Center, 244 F.3d 790, 802 (10th Cir. 2001) (telling content of testimony is not enough; proponent “must explain what he expects the evidence to show” and ground on which it is admissible). Defendants did not do so. Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 8 of 14 Page ID #:3647 SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 - 9 - this Court specifically excluded in an earlier Order granting Plaintiff’s motion in limine. However, even if this Court chooses to consider Defendants’ Damages Testimony, it would fall far short of “sufficient” evidence to support any award of damages, as discussed below. C. DEFENDANTS’ NARRATIVES, WHICH THIS COURT HAS NOT YET ADMITTED OR EXCLUDED, ARE INSUFFICIENT TO PROVE ANY DAMAGES Upon a motion for judgment on partial findings under Rule 52(c), the trial court need not consider the evidence in a light favorable to the party with the burden of proof and may render judgment for the opposing party if the Court believes the evidence presented is insufficient to make out a case. See Geddes v. Northwest Mo. State Univ., 49 F.3d 426, 429 n. 7 (8th Cir.1995). But even if, for some reason, the Court does choose to consider the summary Defendants’ Damages Testimony, and even considering it in a light most favorable to Defendants, the evidence allegedly “proffered” by Defendants is woefully insufficient to support any award of damages. According to Defendants, Defendants’ Damages Testimony,6 constitutes the entirety of their “proffer” of damages. (See ECF Doc. # 150, p. 4-5). Defendants appear to seek damages (in their Counterclaim, Third-Party Claim, and Affirmative Defense of Setoff) due to 6 Defendants’ Damages Testimony again consists of (a) Jim Martin: paragraph 15-16, (b) DonCosta Seawell, paragraph 23, (c) Aqeel Mohammed, paragraph 9. Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 9 of 14 Page ID #:3648 SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 - 10 - alleged “delay” caused to Defendants by Nasatka. But here, at best, Defendants’ Damages Testimony offered by Defendants is a short “summary” of the amount of damages claimed – without any calculation, support, analysis – and as such falls short of meeting the burden for proving breach of contract or delay damages. (See ECF Doc. #127). A brief review of Defendants’ Damages Testimony reveals the obvious inadequacy of Defendants’ “proffer.” The Defendants’ Damages Testimony contain no analysis of any “delay” claim, no critical path analysis, no concurrent delay analysis, no bond claim, no total cost method calculation, no Eichleay formula analysis, no hard-cost v. soft-cost analysis, no invoices showing any expenses allegedly incurred or paid, no breakdown of the total amounts claimed, no indication of the dates at issue, no indication of the components of the damages claim or the amounts at issue, no indication of the alleged personnel at issue, no indication of any payments to any subcontractor, supplier, worker, or laborer, no indication of how any amount was calculated, and no indication of how any amount could possibly be tied to Plaintiff. See id. Such conclusory testimony is undeniably insufficient to support any damages award. Yacht W., Ltd. v. Christensen Shipyards, Ltd., 702 F. Supp. 2d 1292, 1296 (D. Or. 2010), aff'd, 464 Fed. Appx. 626 (9th Cir. 2011) (testimony summarizing amount claimed as damages insufficient to support damages award without evidence tying amount claimed to event and conduct giving rise to claim); Safeco Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 10 of 14 Page ID #:3649 SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 - 11 - Ins. Co. Of Am. v. County Of San Bernardino, 347 Fed. Appx. 315, 318 (9th Cir. 2009) (explaining that where there is no critical path analysis, award of delay damages may be “clearly erroneous.”); Leviton Mfg. Co., Inc. v. Fireman's Fund Ins. Co., 226 Fed. Appx. 671, 673 (9th Cir. 2007) (affirming trial court’s determination that contractor was not liable to property owner for defects in construction where owner failed to prove actual damages resulting from contractor’s breaches); Leisure Time Ent. v. Cal Vista, 35 Fed. Appx. 565, 567 (9th Cir. 2002), opinion clarified, 41 Fed. Appx. 925 (9th Cir. 2002) (“Under California law ‘[n]o damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin.’”); Copenbarger v. Morris Cerullo World Evangelism, Inc., 18 Cal. Daily Op. Serv. 10824 (Cal. Ct. App. 2018), reh'g denied (Nov. 13, 2018) (representative’s testimony, “even if admissible,” held insufficient to support award of damages because testimony did not prove the time spent, work performed, hourly rates, or other facts to support any damages). Thus, even affording Defendants every beneficial inference – to which they are not entitled – Defendants’ “evidence” is completely insufficient to support any damages award on their Counterclaim, Third-Party Claim, or Setoff defense. D. DEFENDANTS’ AFFIRMATIVE CLAIMS AND SETOFF DEFENSE FAIL AS A MATTER OF LAW Defendants have failed in every way to prove any alleged damages. No documents were entered into evidence supporting any damages award. The portions Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 11 of 14 Page ID #:3650 SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 - 12 - of Defendants’ narratives which violate this Court’s orders should be excluded. But even if this Court chooses to consider them, such summary testimony would be insufficient to support an award of damages. In fact – it would be clear error to award delay damages when the record contains no delay analysis supporting such damages (such as a critical path analysis, concurrent delay analysis, inefficiency analysis, etc.). Yacht W., Ltd. v. Christensen Shipyards, Ltd., 702 F. Supp. 2d at 1296; Safeco Ins. Co. Of Am. v. County Of San Bernardino, 347 Fed. Appx. at 318 (9th Cir. 2009); Leisure Time Ent. v. Cal Vista, 35 Fed. Appx. at 567.7 Because Defendants have not proven damages– an essential element of a counter-claim for breach of contract – Defendants’ counterclaim fails as a matter of law. McVicar v. Goodman Global, Inc., 1 F.Supp.3d 1044, 1056(C.D. Cal. Feb. 25, 7 See also, R.P. Wallace, Inc. v. U.S., 63 Fed. Cl. 402, 409 (2004) (burden on claimant to “prove that the excusable event proximately caused a delay to the overall completion of the contract, i.e., that the delay affected activities on the critical path. … And it must also establish the extent to which completion of the work was delayed-it ‘is entitled to only so much time extension as the excusable cause actually delayed performance.’”); Kinetic Builder's Inc. v. Peters, 226 F.3d 1307, 1317 (Fed. Cir. 2000) (contractor must show delay at issue affected activities on the critical path of the contractor's performance of the contract.). Accord Wilner v. U.S., 24 F.3d 1397, 1398 n.5, 39 Cont. Cas. Fed. (CCH) ¶ 76665 (Fed. Cir. 1994) (en banc) (“‘[O]nly construction work on the critical path had an impact upon the time in which the project was completed.’”) (quoting G.M. Shupe, Inc. v. U.S., 5 Cl. Ct. 662, 728, 32 Cont. Cas. Fed. (CCH) ¶ 72712 (1984)); Kelso v. Kirk Bros. Mechanical Contractors, Inc., 16 F.3d 1173, 1177, 40 Cont. Cas. Fed. (CCH) ¶ 76889 (Fed. Cir. 1994); Mega Const. Co., Inc. v. U.S., 29 Fed. Cl. 396, 424–425, 39 Cont. Cas. Fed. (CCH) ¶ 76564 (1993) (“It is not enough that an activity is delayed: there must be delay of an activity on the critical path for there to be project, or compensable, delay”). Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 12 of 14 Page ID #:3651 SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 - 13 - 2014) (proof of damages is essential element of breach of contract claim). Likewise, because Defendants have not proven damages – an essential element of a claim on a performance bond – Defendants’ third-party claim fails as a matter of law. E.g., First Nat'l Ins. Co. of Am. v. HSR Gen. Eng'g Contractors, Inc., C 10-03879 RS, 2012 WL 13049695, at *3 (N.D. Cal. June 1, 2012) (explaining that claimant seeking monetary damages on performance bond claim must prove actual recoverable damages); HM Hotel Properties v. Peerless Indem. Ins. Co., 2013 WL 4507602, at *4 (discussing claimant’s obligation to prove damages in claim against surety); 9th Cir. Model Civil Jury Instruction 5.1 (“[y]our award must be based upon evidence and not upon speculation, guesswork or conjecture”)). Similarly, because they failed to introduce evidence of damages, Defendants have failed to meet their burden of proof on their Eighteenth affirmative defense for “setoff.” Francis v. Equilon Enterprises, LLC, 46 Fed. Appx. 562, 564 (9th Cir. 2002) (defendant bears burden of proving all elements of affirmative defense of setoff). Simply, as a result of Defendants’ failure introduce at trial any evidence supporting any claim to damages, Defendants’ breach of contract claim, performance bond claim, and setoff defense all fail as a matter of law, and Plaintiff is entitled to Partial Judgment pursuant to Rule 52(c). Munoz v. Colvin, 2013 WL 2088519, at *1 (granting Rule 52(c) motion made at the close of the non-movant’s case in bench trial for failure of non-movant to introduce sufficient evidence to Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 13 of 14 Page ID #:3652 SHUTTS & BOWEN LLP ATTO RN EY S AT LA W TA MP A 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 - 14 - support any damages claim) (citing Faria v. M/V Louise V, 945 F.2d 1142, 1143 (9th Cir.1991) (noting that “one of the most basic propositions of law” is “that the [claimant] bears the burden of proving his case, including the amount of damages”). E. CONCLUSION Pursuant to Rule 52(c), Plaintiff and Third-Party Defendant again renew their request made at trial at the close of Defendants’ case for Partial Judgment in Plaintiff’s favor and against Defendants on Defendants’ InSight and CeSight’s counterclaim, for judgment in Plaintiff and Third-Party Defendants’ favor and against Defendant InSight on InSight’s third-party claim on Nasatka’s bond, and for judgment in Plaintiff and NAS’ favor and against Defendants on Defendants’ affirmative defense of setoff. Dated: December 4, 2018. SHUTTS & BOWEN LLP By: /s/ Sarah Donini Rodriguez Sarah Donini Rodriguez Attorneys for Plaintiff Dated: December 4, 2018. BOOTH MITCHEL & STRANGE, LP By: /s/ Craig E. Guenther Craig E. Guenther Attorneys for North American Specialty Insurance Company Case 2:16-cv-08064-DSF-AGR Document 151 Filed 12/04/18 Page 14 of 14 Page ID #:3653