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Mountain West Holding Co. v. State

United States District Court, D. Montana, Billings Division

January 30, 2018



          Dana L. Christensen, Chief Judge

         Before the Court are a number of pending motions, including the parties' second round of Cross-Motions for Summary Judgment (Docs. 116; 120), Defendants State of Montana's and Montana Department of Transportation's (collectively "the State") Motions in Limine to exclude the testimony of Terri Larson and Plaintiff Mountain West Holding Co.'s ("Mountain West") damage calculations (Docs. 124; 126), Mountain West's Motion in Limine to exclude the rebuttal report and testimony of Bryce Ward (Doc. 128), Mountain West's Motion to Amend (Doc. 139), and Mountain West's Motion to Strike the 2016 Disparity Study (Doc. 141). The Cross-Motions for Summary Judgment are opposed. The State's Motions in Limine are opposed. Mountain West's remaining motions do not indicate whether the motions are opposed, as required by Local Rule 7.1 (c)(1). While the State filed a brief in opposition to Mountain West's Motion in Limine, there has not been a response to either Mountain West's Motion to Amend or Motion to Strike. For the reasons explained, the Court denies the Cross-Motions for Summary Judgment and the Motions in Limine. The Court grants Mountain West's Motion to Amend, and reserves ruling until trial on Mountain West's Motion to Strike.

         This case is back before the Court due to the memorandum disposition issued by the United States Court of Appeals for the Ninth Circuit in Mountain West Holding Co. v. Montana, 691 Fed.Appx. 326 (9th Cir. 2017) ("Doc. 108"), which affirmed in part and reversed in part this Court's November 26, 2014, Summary Judgment Order (Doc. 99). All of Mountain West's original claims for injunctive and declaratory relief were dismissed, leaving only the claim for damages under Title VI. The matter is currently set for a bench trial on February 26, 2018. (Doc. 115.) It is important to note that the Ninth Circuit found that there were genuine disputes of material fact which precluded the entry of summary judgment in this case.

         I. Cross-Motions for Summary Judgment

         A party is entitled to summary judgment if it can demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).

         In reading the Cross-Motions for Summary Judgment, the Court is reminded of the metaphor of "two ships passing in the night."[1] It is clear from reading the briefs, supporting documents, and statements of disputed and undisputed facts, that there is little common ground and even less agreement as to the applicable material facts and governing legal principles. There is certainly not the makings of a summary judgment that the court could appropriately enter in favor of either party. Having been reversed once for failing to recognize disputed issues of material fact, the Court is sensitive to not making the same mistake again. The current list of disputed issues of material facts is long and includes, without limitation, the following:

• Did the State rely on the Wilson Study or not?
• Did the State rely on factors other than race or gender to determine that there was lower than expected participation of Disadvantaged Business Enterprises ("DBE")?
• What is the evidence of past discrimination in the Montana highway construction industry?
• Was Mountain West at a competitive disadvantage and, if so, why?
• Depending on the applicable legal standard to be applied, which the parties contest, what is the evidence of discriminatory intent or discriminatory impact/effect by the State?
• What are the details of the Canyon Ferry Road-Helena project, the Amsterdam Road/I-90 Eastbound Onramp contract, the Bonner Interchange-East (1-90) contract, and the Norris East Contract which form the basis of Mountain West's damages claims?
• Assuming Mountain West is entitled to damages, what is the basis for and the amount of these damages?

         Again, this list is not intended to be an exhaustive list of all of the questions of material fact that remain unresolved, but to illustrate the impediment to summary judgment that remains in this case. The obvious solution is to proceed to trial as scheduled on ...

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