United States District Court, D. Montana, Billings Division
MOUNTAIN WEST HOLDING CO. INC., Plaintiff,
STATE OF MONTANA; and MONTANA DEPARTMENT OF TRANSPORTATION, Defendants.
L. Christensen, Chief Judge
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
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.
Cross-Motions for Summary Judgment
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).
reading the Cross-Motions for Summary Judgment, the Court is
reminded of the metaphor of "two ships passing in the
night." 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
• 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
• 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
• 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
• Assuming Mountain West is entitled to damages, what is
the basis for and the amount of these damages?
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 ...