24 results for 'judge:"Gordon "'.
J. Gordon McCloud finds that the lower court improperly found that breath alcohol tests performed in Kitsap County and done on Dr��ger Alcotest 9510 machines violated local state statutes and could not be used for evidence. The lower court is correct that under Washington law, a state toxicologist must approve the methods and math behind test result calculations and the Dr��ger Alcotest machines do not calculate the math correctly under the statue. However, the machines do not need to do the math alone, as the state is still allowed to do the math according to the law, and there is nothing under the law that states the breath machines have to do that math. As long as the calculations were done correctly by the state, results from the breath tests can still be used as evidence. Reversed.
Court: Washington Supreme Court, Judge: Gordon McCloud , Filed On: April 4, 2024, Case #: 101171-7, Categories: Evidence, Dui
J. Gordon grants, in part, the lenders' motion to dismiss a borrower and guarantor's counterclaims. The lenders originally filed suit alleging they fraudulently transferred stocks as repayment. The guarantor contends he first learned of the stock transfers after a previous judgment was entered, but the lenders point to publicly available financial documents that disclosed the stock transfers before the original complaint was filed. Certain counterclaims are precluded, while a conspiracy claim must be dismissed because it is not supported by allegations for damages.
Court: USDC Nevada, Judge: Gordon , Filed On: April 2, 2024, Case #: 2:22cv1206, NOS: Other Fraud - Torts - Personal Property, Categories: Fraud, Securities, Banking / Lending
J. Gordon McCloud finds that the lower court improperly tossed a 2018 Washington statute that sought to change the method for how the state calculates the wage for workers who worked on a public state project like a new bridge or road. The lower court tossed the new method on the grounds that it conflicted with an older statutory rule that stated the wage data collected could only be used in the county where that work was done. But a full reading of the statutes' exact wording show they do not conflict with each other. The older statute only covers data collection methods, while the new statute covers how wage data from collective bargaining agreements is used to pay public project workers. They apply to two different situations covering a broad and complicated overarching issue, and therefore do not cancel each other out. Reversed.
Court: Washington Supreme Court, Judge: Gordon McCloud, Filed On: March 14, 2024, Case #: 101997-1, Categories: Employment, Labor
J. Gordon grants the Department of Veterans Affairs' motion for summary judgment as to the patient's medical malpractice claim. The patient alleges the VA's medical provider negligently performed non-emergency invasive sinus surgery without his informed consent. The VA's liability under the Federal Tort Claims Act is determined by state law. The surgery was performed in Alabama, and malpractice claims based on alleged surgical negligence are barred by Alabama���s four-year statute of repose. The VA���s motion did not address allegations its provider also negligently failed to diagnose the patient's post-procedure nerve damage and, therefore, that claim remains pending.
Court: USDC Nevada, Judge: Gordon , Filed On: March 1, 2024, Case #: 2:22cv1823, NOS: Other Statutory Actions - Other Suits, Categories: Health Care, Veterans, Medical Malpractice
J. Gordon denies the signature canvassers' motion to dismiss the fraud claims. The public education advocacy group says it was defrauded out of more than $2.2 million in a failed signature gathering effort supporting a ballot initiative. The assignee of the advocacy group says the canvassers did not obtain valid signatures at the claimed rate. The canvassers' contacts with the forum were not random, fortuitous, attenuated, or based solely on the advocacy group's location. The claims are assignable, arising out of the canvassers' forum-related activities, and exercise of jurisdiction is reasonable.
Court: USDC Nevada, Judge: Gordon , Filed On: January 17, 2024, Case #: 2:23cv69, NOS: Other Contract - Contract, Categories: Fraud, Jurisdiction, Contract
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J. Gordon grants the tool company's motion for summary judgment on a customer's negligence claim, precipitated by a customer's nail-gun injury. The tool company did not design, manufacture, distribute or sell the nail gun, nor did it have part in the formulation of any warnings on the packaging. In a separate order, the court certifies a question to the Nevada Supreme Court regarding whether a trademark licensor is subject to strict products liability.
Court: USDC Nevada, Judge: Gordon , Filed On: December 18, 2023, Case #: 2:22cv938, NOS: Personal Injury - Product Liability - Torts - Personal Injury, Categories: Tort, Trademark, Product Liability
J. Gordon grants the debt collector���s motion to dismiss this suit alleging violations of the Fair Debt Collection Practices Act. The debtor claims that the collector���s undated letter, which caused her to question its legitimacy, violated debt validation notice requirements, was harassing, misleading and unconscionable. The collector is protected by a Consumer Financial Protection Board regulatory safe harbor because it used a board model letter. The debtor has not alleged that information in the letter was inaccurate and has not plausibly alleged any violations of the Act.
Court: USDC Nevada, Judge: Gordon, Filed On: October 31, 2023, Case #: 2:22cv2150, NOS: Consumer Credit - Other Suits, Categories: Debt Collection, Consumer Law
J. Gordon grants Hilton���s motion to dismiss this suit alleging disability discrimination, harassment and retaliation brought by the former employee. Claims focus mostly on conduct by police, who the employee says have harassed and stalked her at Hilton���s direction. The allegations are conclusory and do not plausibly allege extreme and outrageous conduct or severe emotional distress.
Court: USDC Nevada, Judge: Gordon, Filed On: October 23, 2023, Case #: 2:23cv988, NOS: Amer w/Disabilities-Employment - Civil Rights, Categories: Emotional Distress, Employment Discrimination, Employment Retaliation
J. Gordon grants the loan servicer���s motion for summary judgment, declaring that the deed of trust for which it is the beneficiary remains an encumbrance on the property sold by the homeowner���s association at a foreclosure sale and transferred to the trust. No genuine dispute remains that the HOA did not substantially comply with notice requirements to the original beneficiary of record under the deed of trust. The loan servicer is prejudiced because the original loan servicer on the property was deprived of the opportunity to cure the default, which it would have done had it been given notice.
Court: USDC Nevada, Judge: Gordon, Filed On: October 5, 2023, Case #: 2:16cv2653, NOS: All Other Real Property - Real Property, Categories: Property, Trusts, Banking / Lending
J. Gordon McCloud finds that the lower court improperly reversed defendant's convictions for criminal solicitation after she told her son he could be with her forever if he poisoned his father. The lower court reversed her convictions on the grounds that her offer to have the child be with her "forever" did not constitute a thing of value that must be offered for a criminal solicitation charge to stick. However, a thing of a value can encompass things outside of traditional economic importance, and her offer satisfies that broader definition. Reversed.
Court: Washington Supreme Court, Judge: Gordon McCloud , Filed On: September 28, 2023, Case #: 101442-2, Categories: Criminal Procedure
J. Gordon McCloud finds that the lower court properly sentenced defendant on attempted rape and burglary charges. Defendant was sentenced under the state's "three strikes" law stemming from two prior convictions defendant had earlier in life, one of which took place when he was a minor. Defendant claims the strike incurred when he was a minor should not count towards his current sentence, but under the law his sentence is based on his adult conduct, even if his priors contribute towards it. There is nothing unlawful about his sentence as a result. Affirmed.
Court: Washington Supreme Court, Judge: Gordon McCloud, Filed On: September 21, 2023, Case #: 100873-2, Categories: Burglary, Sentencing, Sex Offender
J. Gordon grants the special ed children's motion to strike certain exhibits attached to the school district's reply brief in this civil rights suit alleging that a teacher physically and sexually abused them. A summary judgment reply brief is limited to 20 pages under local rule, and argument cannot be included in an exhibit to evade the limit. The exhibits (charts) list hearsay and relevancy objections, arguing also that the facts in the response brief are not supported by cited evidence. These arguments should have been in the reply brief. Certain of the school district's motions for summary judgment are granted, regarding claims centered around handholding and failure to train. Other claims regarding hearsay are allowed to proceed, as the children could testify at trial.
Court: USDC Nevada, Judge: Gordon , Filed On: September 14, 2023, Case #: 2:21cv218, NOS: Other Civil Rights - Civil Rights, Categories: Civil Rights, Education, Evidence
J. Gordon McCloud finds that the lower court properly dismissed a suit from a school district that alleged the state did not provide it with enough funding to take care of the district's facilities and infrastructure. The district asked the state to pay the costs of rebuilding the district's elementary, middle and high schools, which would be roughly $50 million in construction costs. Under state law, construction costs are treated differently then other education-related expenses and local districts are given flexibility to raise funds for those costs themselves. The state, as a result, is not legally required to fully fund those needs. Affirmed.
Court: Washington Supreme Court, Judge: Gordon McCloud, Filed On: September 7, 2023, Case #: 101052-4, Categories: Education
J. Gordon dismisses the federal claims with leave to amend, alleging First, Fourth, Fifth and Fourteenth Amendment violations, brought by the family of a 12-year-old child who was killed in a hostage situation. No federal constitutional violation has been plausibly alleged. State law claims, including negligence, negligent and intentional infliction of emotional distress, wrongful death and negligent supervision and training are not addressed. The family may file an amended complaint curing deficiencies, otherwise the case will be dismissed without prejudice to the state law claims brought in state court.
Court: USDC Nevada, Judge: Gordon, Filed On: September 6, 2023, Case #: 2:22cv1786, NOS: Other Civil Rights - Civil Rights, Categories: Constitution, Negligence, Wrongful Death
J. Gordon McCloud finds that the lower court improperly granted fees to a real estate company following a quiet title dispute in which one of their properties was improperly foreclosed. While it is clear that the real estate company is the prevailing party on the claims, the lower court granted attorney fees to the company on a theory that was not only raised incorrectly sua sponte, but was also based on a theory that this court had already rejected. Reversed.
Court: Washington Supreme Court, Judge: Gordon McCloud, Filed On: August 31, 2023, Case #: 101149-1, Categories: Real Estate, Attorney Fees
J. Gordon grants the insurer���s motion to dismiss aspects of this insurance dispute brought by a truck driver who was injured in an accident caused by an unknown party. The driver brings a variety of claims against his company's insurance provider, including breach of contract, fraud and civil conspiracy. Certain allegations of intentional misrepresentation and conspiracy do not identify whether or not the provider or its parent company made the alleged representations, when, or how the representations were communicated. Also, a parent company cannot conspire with its subsidiary and a company generally cannot conspire with its own employees. Breach of contract claims will be allowed to proceed. The precise relationship between the involved entities is unclear from the policy, the complaint���s allegations and representations made by the companies, and it is premature to conclude that the driver cannot state a claim. He is given leave to amend.
Court: USDC Nevada, Judge: Gordon, Filed On: August 31, 2023, Case #: 2:22cv1974, NOS: Insurance - Contract, Categories: Insurance, Business Practices, Contract
J. Gordon grants the county���s motion for summary judgment on all claims alleging discriminatory treatment based on sexual orientation brought by the county���s director of planning. The director cannot show he suffered an adverse employment action as he is still on the job without a change in compensation. If allegations were true that the supervisor subjected the director to harsh, unfounded criticism in an attempt to get him fired, it resulted in no changes to the terms and conditions of the director���s employment. The director has also not identified a similarly situated employee who was treated differently.
Court: USDC Nevada, Judge: Gordon, Filed On: August 8, 2023, Case #: 2:21cv1312, NOS: Civil Rights - Habeas Corpus, Categories: Evidence, Employment Discrimination, Employment Retaliation
J. Gordon grants North Las Vegas���s motion for summary judgment in part in this race discrimination suit brought by a Black police officer. He claims he was transferred from his job in recruiting and denied subsequent promotions because he is Black, though he offers only conclusory statements that non-Black officers received preferential treatment with respect to the same. Events surrounding his removal from a 19-year honor guard service, including the effect of an excused leave, could lead a reasonable jury to find that the city���s proffered reasons for removal are pretextual.
Court: USDC Nevada, Judge: Gordon, Filed On: July 28, 2023, Case #: 2:21cv1505, NOS: Civil Rights - Habeas Corpus, Categories: Civil Rights, Employment Discrimination
J. Gordon dismisses a counterclaim brought by the borrower who defaulted in this suit brought by the lenders on allegations of fraudulent transfer of stock. A breach of fiduciary duty claim alleges the stock transfer resulted in unjust enrichment to the company owners while they failed to pay the debt. The owners say the lenders intentionally assisted the breach of a duty through their interaction with other parties, and the "shifting" allegations do not give the lenders fair notice of who is asserting the claim, in what capacity, and on what factual basis.
Court: USDC Nevada, Judge: Gordon, Filed On: July 25, 2023, Case #: 2:22cv1206, NOS: Other Fraud - Torts - Personal Property, Categories: Fraud, Securities, Fiduciary Duty
J. Gordon grants the City of Henderson���s motion for summary judgment on the excessive force claims brought by the citizen against responders to his 911 call after he took a new antibiotic, had an adverse reaction and believed that his wife had poisoned him. Officers tried to calm him as he acted paranoid, cried, sweated and told them he was dying and melting. He said a paramedic became aggressive and demanded that he tell him the whole story as he recorded him with his phone. The man escaped the ambulance, telling the paramedics they were fired before officers tackled him and the paramedics administered ketamine. Assuming a reasonable jury could find a constitutional violation, the patient does not identify authority showing a clearly established right such that a reasonable paramedic would have understood the conduct to violate it. The court declines to exercise supplemental jurisdiction over remaining state law claims and remands them to state court.
Court: USDC Nevada, Judge: Gordon, Filed On: July 20, 2023, Case #: 2:22cv23, NOS: Other Civil Rights - Civil Rights, Categories: Civil Rights, Health Care, Police Misconduct
J. Gordon McCloud finds that the lower court properly ruled in a question over whether a bankruptcy triggers the statute of limitations in regard to the enforcement of a deed of trust. A bankruptcy discharge does not have to mean that a deed of trust has been altered and if the terms remain the same, such as unchanged payment schedules and maturity dates, a bankruptcy does not trigger the statute of limitations to enforce a deed. Affirmed.
Court: Washington Supreme Court, Judge: Gordon McCloud, Filed On: July 20, 2023, Case #: 100728-1 , Categories: Bankruptcy
J. Gordon McCloud finds that the lower court correctly interpreted the Washington Family Care Act in a dispute over whether that Act trumps a collective bargaining agreement. Alaska Airlines' agreement with the flight attendants requires them to schedule their vacation days in advance. The state labor department argues that the Washington Family Care Act, which allows employees to use earned time off to care for a sick family member, displaces the mandatory advance scheduling requirement found in the bargaining agreement. But there is nothing explicitly in that law the says this, and when read in full context, the law makes it clear that it preserves all the crucial, broad terms of the agreement and does not conflict with the scheduling requirement. Affirmed.
Court: Washington Supreme Court, Judge: Gordon McCloud, Filed On: June 29, 2023, Case #: 100485-1, Categories: Employment, Labor / Unions
J. Gordon grants the customer support company���s motion for summary judgment in this class action alleging that employees were not paid for time spent booting up their computers before clocking in or for time spent powering down the computers after clocking out. The employees have not raised a triable issue as to whether the time at question was not trivial, or that it was not adjusted if found to be significant. The employees have not offered evidence sufficient to determine uncompensated time as a matter of just and reasonable inference.
Court: USDC Nevada, Judge: Gordon, Filed On: May 22, 2023, Case #: 2:18cv233, NOS: Fair Labor Standards Act - Labor, Categories: Civil Rights, Employment, Evidence