Watts v. Allstate Indemnity Company et al

MOTION for

E.D. Cal.June 9, 2011

WENDY C. YORK, SBN 166864 JENNIFER B. EULER, SBN 232378 2 YORK LAW CORPORATION 1111 Exposition Blvd., Bldg. 500 Sacramento, California 95815 4 Telephone: (916) 643-2200 Facsimile: (916) 643-4680 3 5 KIMBERLY A. KRALOWEC, SBN 163158 6 ELIZABETH 1. NEWMAN, SBN 257329 7 THE KRLOWEC LAW GROUP 188 The Embarcadero, Suite 800 8 San Francisco, California 94105 Telephone: (415) 546-6800 9 Facsimile: (415) 546-6801 10 Attorneys for Plaintiff and the Putative Class 11 12 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION 13 14 15 16 ROBERT WATTS, on behalf of himself 17 individually and all others similarly situated, 18 19 20 Plaintiffs, vs. ALLSTATE INDEMNITY COMPANY, an 21 Ilinois corporation; ALLSTATE INSURANCE 22 COMPANY, an Ilinois corporation;ALLSTATE PROPERTY AND CASUALTY 23 INSURANCE COMPANY, an Ilinois corporation; and DOES 1 through 100, 24 inclusive, 25 26 27 28 Defendants. CASE NO.: S-08-1877 LKKlGGH NOTICE OF MOTIONS AND MOTIONS FOR (1) RELIEF FROM AN ORDER AND FINAL JUDGMENT (FED. R. CIV. P. 60(b)); (2) LEAVE TO FILE A CORRCTED STATEMENT OF DISPUTED MATERIAL FACTS (FED. R. CIV. P. 56(e)); AND/OR (3) RECONSIDERATION (E.D. CAL. LOCAL RULE 230(j)) Date: Time: Dept.: Before: July 18, 2011 10:00 a.m. Courtroom 4, 15th Floor Hon. Lawrence K. Karlton NOTICE OF MOTIONS FOR RELIEF UNDER RULE 60(b), FOR LEAVE TO FILE CORRCTED STATEMENT UNDER RULE 56( e), AND/OR FOR RECONSIDERATION UNDER RULE 2300) Case 2:08-cv-01877-LKK-KJN Document 266 Filed 06/09/11 Page 1 of 5 1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE that on July 18,2011 at 10:00 a.m., or as soon thereafter as 3 counsel may be heard, in Courtroom 4 of the United States District Court for the Eastern District of 4 California, Sacramento Division, located at 501 "I" Street, Sacramento, California, plaintiff Robert 5 Watts, on behalf of himself and all others similarly situated, will move and hereby does move: 6 7 8 9 10 11 12 (1 ) for relief from the Court's Order entered 05/12/11 (Dock. No. 255) and the ensuing Judgment entered 05/12/11 (Dock. No. 256) under Federal Rule of Civil Procedure 60(b); (2) for leave to file a Corrected Statement of Disputed Material Facts in Opposition to Defendants' Motion for Summary Judgment or Partial Summary Judgment under (3) Federal Rule of Civil Procedure 56(e); and/or for reconsideration of the Order and Judgment entered 05/12/11 (Doc. Nos. 255 and 13 256) under E.D. CaL. Local Rule 230(j). 14 The motions are brought on the grounds that the Order and Judgment (Dock. Nos. 255 and 15 256) would not have been entered but for the inadvertent and excusable neglect ofplaintifts 16 counsel in omitting important citations from their original Statement of Disputed Material Facts and 17 in failing to properly authenticate and attach all relevant evidence creating triable issues of material 18 fact that would have defeated the summary judgment motion. See Fed. R. Civ. P. 60(b)(l); E.D. 19 CaL. Local Rule 230(j). The motions are brought on the further grounds that newly discovered 20 evidence creates a triable issue of material fact that would have prevented the Order and Judgment 21 (Dock. Nos. 255 and 256) from being entered. See Fed. R. Civ. P. 60(b)(2); E.D. CaL. Local Rule 22 230(j). The motions are further brought on the grounds that the initial decision granting summary 23 judgment (i.e., the Order and Judgment (Dock. Nos. 255 and 256)) was manifestly unjust and 24 should be vacated to prevent a miscariage of justice. The motions are further brought on the 25 grounds that clear error was committed in granting summary judgment and entering the Order and 26 Judgment (Dock. No. 255 and 256). 27 28 - 1 - NOTICE OF MOTIONS FOR RELIEF UNDER RULE 60(b), FOR LEAVE TO FILE CORRCTED SEPARATE STATEMENT UNDER RULE 56(e), AND/OR FOR RECONSIDERATION UNDER RULE 230(j) Case 2:08-cv-01877-LKK-KJN Document 266 Filed 06/09/11 Page 2 of 5 1 The motions are timely brought within 28 days of entry ofthe challenged Order and 2 Judgment. Fed. R. Civ. P. 60(c)(1) (requiring that motion be filed "within a reasonable time... and 3 no more than a year after the entry of the judgment"). 4 Pursuant to E.D. CaL. Local Rule 230(j), plaintiff states that: (1) the summary judgment 5 motion was filed on April 8, 2011 and heard on May 9,2011 before the Honorable Lawrence K. 6 Karlton; (2) the prior motion was granted in its entirety (Order fied 05/12/11 (Dock. No. 255)); (3) 7 the prior motion was granted due to inadvertent and excusable omissions in plaintiff s original 8 Statement of Disputed Material Facts and failure to properly authenticate and attach all relevant 9 evidence; (4) the new and different facts and circumstances that exist now but did not exist or were 10 not shown previously are those revealed in the deposition of defendants' designated expert, Mr. 11 Robert Lange, who testified that if the service manual is silent on the subject of seat belt 12 replacement, the owner's manual should be considered; and (5) Mr. Lange was not produced for 13 deposition until May 2, 2011, after plaintiff s opposition to the summary judgment motion was due 14 and fied on April 25, 2011, and the transcript of his deposition was not available until May 24, 15 2011, after the Court had already ruled on the motion; plaintiff s counsel exercised due diligence in 16 attempting to promptly obtain Mr. Lange's deposition testimony; and the testimony could not have 17 been obtained earlier through the exercise of greater due diligence. 18 The motions shall be based on this Notice; on the accompanying Memorandum of Points 19 and Authorities; on the accompanying Declarations of Wendy C. York and Jennifer B. Euler; on the 20 accompanying proposed Corrected Statement of Disputed Material Facts; on the accompanying 21 proposed Corrected Response to Defendants' Separate Statement of Undisputed Material Facts; on 22 / / / / 23 / II / 24 / II / 25 II II 26 / / / / 27 / II / 28 - 2 - NOTICE OF MOTIONS FOR RELIEF UNDER RULE 60(b), FOR LEAVE TO FILE CORRCTED SEPARATE STATEMENT UNDER RULE 56(e), AND/OR FOR RECONSIDERATION UNDER RULE 230(j) Case 2:08-cv-01877-LKK-KJN Document 266 Filed 06/09/11 Page 3 of 5 all pleadings, records, and documents on file in this action; and on such futher evidence and 2 argument as may be presented in support of the motions at the hearing or otherwise. 3 Dated: June 9, 2011 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 Respectfully submitted, By: WenCly C. York Jennifer B. Euler SBN 232378) YORK LAW CORPORATION Kimberly A. Kralowec (SBN 163158) Elizabeth 1. Newman (SBN 257329) THE KRALOWEC LA W GROUP Attorneys for Plaintiff Robert Watts and the Putative Class - 3 - NOTICE OF MOTIONS FOR RELIEF UNDER RULE 60(b), FOR LEAVE TO FILE CORRCTED SEPARATE STATEMENT UNDER RULE 56(e), AND/OR FOR RECONSIDERATION UNDER RULE 230(j) Case 2:08-cv-01877-LKK-KJN Docum nt 266 Filed 06/09/11 Pag 4 of 5 2 COURT: CASE NO. CASE NAME: United States District Court for the Eastern District of California 2:08-CV -01877-LKK-GGH Robert Watts v. Allstate Indemnity Company, et aL. 3 PROOF OF SERVICE 4 5 I am a citizen of the United States, employed in the County of Sacramento, State 0 California. My business address is 1111 Exposition Boulevard, Building 500, Sacramento C 95815. I am over the age of 18 years and not a party to the above-entitled action. 6 7 I am readily familiar with York Law Corporation's practice for collection and processin of correspondence for mailing with the United States Postal Service. Pursuant to said practice, each document is placed in an envelope, the envelope is sealed, the appropriate postage is place thereon and the sealed envelope is placed in the offce mail receptacle. Each day's mail i collected and deposited in a U.S. mailbox at or before the close of each day's business. (CC Section 1013a(3) or Fed.R.Civ.P.5(a) and 4.1; USDC (E.D. CA) L.R. 5-135(a).) 8 9 10 11 On June 9, 2011, I caused the within, NOTICE OF MOITIONS AND MOTIONS FOR (1) RELIEF FROM AN ORDER AND FINAL JUDGMENT (FED. R. CIV. P. 60(b)); (2) LEAVE TO FILE A CORRCTED STATEMENT OF DISPUTED MATERIAL FACTS (FED. R.CIV. P. 56(e)); AND/OR (3) RECONSIDERATION (E.D. CAL. LOCAL RULE 230(j)), to be served via 12 13 14 xx By E-Mail 1 Electronic Transmission-- Based on a court order or an agreement of the paries to accept service bye-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed below: I did not receive within a reasonable time after the transmission, any electronic message or other indication that th transmission was unsuccessful: 15 16 17 Sonia Marin, Esq. SNR Denton US LLP 525 Market St 26FL San Francisco, CA, 94105-2708 18 19 20 Mark Hanover SNR Denton US LLP 7800 Sears Tower, 233 South Wacker Dr. Chicago, IL 60606-6404 21 22 23 Kimberly A. Kralowec THE KRALOWEC LAW GROUP 188 The Embarcadero, Suite 800 San Francisco, California 94105 24 25 26 I declare that I am employed in the office of a member of the bar of this Court at whos direction the service was made and that this Declaration is executed on June 9, 2011 a Sacramento, California. I declare under penalty of perjury under the laws of the State 0 California that the foregoing is true and correct. ' 27 28 Proof Of Service - 1 ase 2:08-cv-01877-LKK-KJN Document 266 Filed 06/09/11 Page 5 of 5