Aguirre Guerra v. Dematic Corp.

6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * OK OK || GUISELA AGUIRRE GUERRA, Case No. 3:18-CV-0376-LRH-CLB 10 Plaintiff, | ORDER 11 v. || DEMATIC CORP, et al., 13 Defendants.

16 Before the court is Plaintiff Guisela Aguirre Guerra’s (“Aguirre”) objection (ECF No. 74) || to Magistrate Judge Carla Baldwin’s order (ECF No. 73) denying plaintiffs motion for leave to || file a second amended complaint. Defendant Dematic Corporation (“Dematic”) has filed a || response to Aguirre’s objection (ECF No. 75). For the reasons stated below, the Court overrules || Aguirre’s objection and affirms Judge Baldwin’s order.

21 I. BACKGROUND 22 On June 11, 2018, Aguirre filed a complaint against Dematic in state court alleging that it || was negligent and strictly liable for an injury Aguirre suffered while working at Sally Beauty || Supply, LLC (“Sally Beauty”). ECF No. 1-1. Aguirre alleges a lift gate manufactured and || installed by Dematic injured Aguirre in 2016. ECF No. 1 at 5-6. Dematic removed the case to || federal court pursuant to 28 U.S.C. § 1441. ECF No. 1. After some discovery, the parties || stipulated to amend the complaint to add as defendant Rapistan Demag (“Rapistan)—Dematic’s || predecessor and the company that installed the lift gate.' ECF No. 14. Later, Aguirre maintains || that after additional discovery, she uncovered further information that gave rise to a second || amended complaint. ECF No. 68.

4 Specifically, Aguirre’s proposed second amended complaint (“SAC”) alleges Rapistan || misrepresented the amount of force needed to lift the gate when sold to Sally Beauty in 1999— || thereby violating the Nevada Deceptive Trade Practices Act (“NDTPA”). ECF No. 68-1. While || Rapistan represented that the lift gate would take “less than 40 pounds of force to lift[,]” (ECF || No. 68-1 at 4) Aguirre alleges the amount of force required is actually “over 55 pounds[.]” Jd.

9 || Because of this misrepresentation—according to Aguirre—she injured herself while lifting the || gate. ECF. No 68-1 at 3. After observing that “the law requires the claimant to allege reliance on || [a] misrepresentation,” Judge Baldwin found that the claim failed to allege any facts which || indicated Aguirre actually relied on the misrepresentation concerning the lift gate. ECF No. 73 at || 6. Accordingly, Judge Baldwin ruled that the motion for leave to file a SAC must be denied. /d.

14 Judge Baldwin’s order and Aguirre’s subsequent objection are the subject of this appeal.

15 Il. LEGAL STANDARD 16 A magistrate judge may decide non-dispositive pretrial matters. Fed. R. Civ. P. 72(a); 28 || U.S.C. § 636(b)(1)(A). The magistrate judge’s order generally operates as a final determination.

18 |} LR IB 1-3. But if a party timely objects to the magistrate judge’s order, a district court judge |} must review the order and “set aside any part [...] that is clearly erroneous or is contrary to law.”

20 || Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); LR IB 3-1(a). “Clear error occurs when ‘the || reviewing court on the entire record is left with the definite and firm conviction that a mistake || has been committed.” Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 950 (9th Cir. 2013) (quoting || United States v. Gypsum Co., 333 U.S. 364, 395 (1948)). “An order is contrary to law when it || fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Jadwin v. Cty. of || Kern, 767 F. Supp. 2d 1069, 1110-11 (E.D. Cal. 2011) (quoting DeFazio v. Wallis, 459 F. Supp. 26 || 2d 159, 163 (E.D.N.Y. 2006)). However, in reviewing the order, the court applies the deferential || | For the purposes of this order, the Defendant will be referred to as Rapistan because it is Rapistan’s conduct which is at issue.

1 || abuse-of-discretion standard; the magistrate judge’s order will be reversed only if the magistrate || judge abused her broad discretion. Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446 || (C.D. Cal. 2007); see also Premium Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 229 || (9th Cir. 1975) (holding a judge abuses her discretion only when her decision is contrary to law || or clear error based on the evidence).

6 Ill. DISCUSSION 7 After reviewing Aguirre’s objections, the parties’ filings, and the relevant case law, the || Court is satisfied that Magistrate Judge Baldwin’s order is neither clearly erroneous nor contrary || to law.

10 The NDTPA provides a right of action to individuals who are “victim[s] of consumer || fraud.” NRD 41.600(1). The Nevada Supreme Court has not defined the elements of a claim || under the NDTPA. So, as Judge Baldwin correctly identified, when state law is unclear and the || highest court of the state has not ruled on the issue, federal courts are tasked with predicting how || the court might decide the issue. Soltani v. Western & Southern Life Ins. Co., 258 F.3d 1038, |} 1045-46 (9th Cir. 2001). Federal courts can look to intermediate appellate court decisions, || statutes, and “well-reasoned decisions” from other jurisdictions for guidance. Takahashi v. || Looms Armored Car Service, 625 F.2d 314, 316 (9th Cir. 1980); Gravquick A/S v. Trimble || Navigation Int’l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003). Since the Nevada Supreme Court has || not defined the elements of a claim under the NDTPA, Judge Baldwin turned to another federal || court decision which did—Picus v. Wal-Mart Stores Inc. 256 F.R.D. 651 (2009). There the court || found, after reviewing numerous other states’ deceptive trade statutes, that the NDTPA requires || a plaintiff to prove “(1) an act of consumer fraud by the defendant (2) caused (3) damage to the || plaintiff.” Id. at 658. Additionally, the causation element includes reliance. Jd. In other words, || the defendant must have relied on the alleged misrepresentation in order to state a claim under || the NDTPA. Lastly, Judge Baldwin observed that the plaintiff must suffer a direct harm from the || alleged misrepresentation—meaning the deception and injury cannot be too attenuated. ECF No. || 73 at 5 (citing Del Webb Cmtys, Inc. v. Partington, 652 F.3d 1145, 1152 (9th Cir. 2011)).

1 Working with these previously agreed upon understandings of the NDTPA, Judge || Baldwin denied the motion to leave to file a second amended complaint. ECF No. 73. Aside || from finding no facts which suggested Aguirre relied on the alleged misrepresentations made by || Rapistan, Judge Baldwin also noted Aguirre’s injury occurred 17 years after Rapistan made the || misrepresentation. Jd. In the Judge’s mind, “[the] alleged harm [was] only tangentially related to || the words in an information brochure provided to [Aguirre’s] employer 17 years before the || injury.” Jd. Still, Aguirre asserts that the NDTPA does not require actual reliance on a || misrepresentation in each case, and she was still “directly harmed” by Rapistan’s || misrepresentation despite the length of time between the deception and injury. ECF No. 74. The || Court disagrees and is satisfied with Judge Baldwin’s understanding and application of the || NDTPA.

12 First, Judge Baldwin correctly utilized the decision in Picus to identify the elements of a || claim under the NDTPA— including reliance. Picus involved members of a class alleging that || they were harmed by a pet food label which deceived them into believing the food was “Made in || the USA.” Jd. at 659. The court in Picus denied certifying the class because it determined claims || under the NDTPA required a showing of reliance, and it was unreasonable to assume that all of || the class members relied on the misrepresentation contained on the label when they purchased || the pet food. Jd. Nevertheless, Aguirre argues that the present case is distinguishable. According || to Aguirre, her injury is not dependent upon her having relied on Rapistan’s alleged || misrepresentation concerning the force required to lift the gate. ECF No. 74. While true her || alleged physical injury is not dependent on the misrepresentation, the same cannot be said for an || injury under the NDTPA. As Judge Baldwin pointed out, “[w]ithout [Aguirre] knowing what || Rapistan claimed the weight of the gate to be, she cannot be a victim of the misrepresentation.”

24 || ECF No. 73 at 6.

25 Second, Aguirre fails to identify how she was directly harmed by the misrepresentation.

26 || See Del Webb, 652 F.3d at 1155. Aguirre argues that she was “directly harmed” because “the || ‘excessive forces’ (more than the forces advertised by [Rapistan]) directly injured her arm when || she lifted the Gate.” ECF No. 74 at 4. However, again, without any knowledge of Rapistan’s || misrepresentations, there is no minimal casual connection between the deceptive trade practice || and her injury. Aguirre could not have been directly harmed by an alleged misrepresentation if it || occurred 17 years before her employment, and she was not aware of it when lifting the gate.

4 Thus, given this record, the Court finds that Judge Baldwin properly denied Aguirre’s || motion for leave to file a second amended complaint. No part of this ruling is contrary to law or || clearly erroneous. Accordingly, the Court overrules Aguirre’s objections and affirms Judge || Baldwin’s ruling.

8 IV. CONCLUSION 9 IT IS THEREFORE ORDERED that Aguirre’s motion (ECF No. 74) is DENIED.

10 IT IS SO ORDERED.

11 DATED this & “day of OD: 2020. .

13 LARRY R. HICKS 4 UNITED STATES DISTRICT JUDGE