Agnes SUEVER, deceased; Madonna Suever; Steve Tucker; Alexander Vondjidis; Richard W. Seitzinger; Jo-Ann Seitzinger, individually and as trustees for the Seitzinger Family Trust; Johnstone Whitley; Tony Lee; Lynn Keith, on behalf of themselves as individuals and as taxpayers on behalf of other persons similarly situated, Plaintiffs-Appellants, v. Kathleen CONNELL, in her individual capacity as former State Controller of the State of California; Richard Chivaro, in his individual and official capacity; George Deleon, in his individual and official capacity; Steve Westly, in his individual and official capacity as Controller of the State of California, and its custodial capacity as administrator for the Unclaimed Property Fund; John Chiang, Defendants-Appellees.
No. 10-17127.
United States Court of Appeals, Ninth Circuit.
June 4, 2012.
1064
To further refute BP Amoco‘s evidence of Hexcel‘s knowledge specifically based on the January 1999 subpoena, Hexcel proffered a declaration from its lead antitrust counsel in which he declared that his previous advice to Hexcel, that the statute of limitations on its claim likely began to run on January 29, 1999, did not consider the possibility of a fraudulent concealment defense. Such contradictory, self-serving testimony likewise fails to create a genuine issue of material fact. Publ‘g Clearing House, 104 F.3d at 1171. Indeed, Hexcel‘s other declarations, such as the Mettenet declaration, regarding whether Hexcel employee, Mike Mettenet, actually knew of the price-fixing rumors, were equally unhelpful concerning the question of whether he subjectively suspected a price-fixing conspiracy. Ultimately, however, we agree with the district court that whether a single executive actually knew about the price-fixing conspiracy fails to counterbalance BP Amoco‘s substantial evidence that a reasonable plaintiff “should have been alerted to facts that, following duly diligent inquiry, could have advised it of” the price-fixing conspiracy. Conmar, 858 F.2d at 502.
Hexcel‘s argument that the district court drew various inferences in BP Amoco‘s favor is also unavailing; the district court dealt only with the objective standard of actual or constructive notice, based upon the record evidence before it. Accordingly, the district court did not err in concluding that Hexcel‘s claims were time-barred and entering summary judgment for BP Amoco because Hexcel failed to proffer evidence sufficient to create any genuine issues of material fact.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the district court holding Hexcel‘s claims are time-barred under the applicable four-year statute of limitations.
William Wayne Palmer, Esquire, Law Offices of William W. Palmer, Sacramento, CA, for Plaintiffs-Appellants.
James Harrison, Robin B. Johansen, Margaret Prinzing, Thomas Willis, Remcho, Johansen & Purcell LLP, San Leandro, CA, for Defendants-Appellees.
D.W. NELSON, Circuit Judge:
After this matter was assigned to me, I determined in the course of pre-argument preparation that I appear to be a member of the putative plaintiff class, though it is as yet uncertified, as I own property that appears in the California State Controller‘s database of unclaimed property.
A fellow judge of this Court recently confronted a similar situation, though in that case the judge appeared to be a member of the certified class. At any rate, the judge concluded that her “decision not to recuse is authorized by
I have considered whether I should recuse myself from this case because of the possibility of class membership. However, after reviewing the analysis in Stern and In re Literary Works, I believe recusal in this case would be inappropriate, especially given that the class is not yet certified. I therefore will not recuse, but rather announce that I will forego any financial interest in this putative class and will not accept any payments due myself as a member of the putative class.
D.W. NELSON
Circuit Judge