Howell et al v. Arizona Storage Inns et al

Filing 99

ORDER AND OPINION granting 89 Motion for Summary Judgment; denying 93 Motion for Extension of Time; denying 94 Motion for Extension of Time. The Clerk shall please enter judgment for defendants. Signed by Judge John W Sedwick on 12/6/11.(TLJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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WILLIAM D. HOWELL,
Plaintiff,

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vs.
ARIZONA STORAGE INNS, et al.,
Defendants.

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2:10-cv-00790 JWS
ORDER AND OPINION
[Re: Motions at Dockets 89, 93 & 94]

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I. MOTION PRESENTED
At docket 89, defendants John Furlong (“Furlong”), Steven Little (“Little”), Sallie

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Scott (“Scott”), and Maret Vessella (“Vessella”) (collectively “defendants”) move for

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summary judgment pursuant to Rule 56. At docket 93, plaintiff William D. Howell moves

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to enlarge the time for discovery and for an extension of time to respond to the motion

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at docket 89 and for an enlargement of time to file a motion pursuant to Rule 56(d). At

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docket 94, Howell moves pursuant to Rule 56(d) for an enlargement of time to file a

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response to the motion at docket 89. Defendants oppose those motions in a

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consolidated response filed at docket 96. Oral argument was requested by Mr. Howell,

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but would not assist the court.

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II. BACKGROUND

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This suit arises out of an Order of Conservatorship, issued by the Superior Court

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of Arizona, directing the State Bar of Arizona to take possession of Mr. Howell’s files.

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Mr. Howell is a disbarred attorney. Little was bar counsel during the disciplinary

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proceedings that resulted in Mr. Howell’s disbarment.

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Mr. Howell kept certain client files in storage space at the Arizona Storage Inns.

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On October 1, 2009, Kenneth Hess (“Hess”), manager of the Arizona Storage Inns,

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contacted the State Bar and informed Scott, the State Bar’s Conservatorship

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Coordinator, that he believed Mr. Howell had abandoned the contents of his storage

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unit. Hess informed the State Bar that the contents of Mr. Howell’s storage unit,

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including his former clients’ files, would be auctioned on October 22, 2009. Furlong,

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General Counsel and Deputy Executive Director for the State Bar, sought appointment

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of a conservator.

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A hearing on the appointment of a conservator was held on October 21, 2009, at

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9:00 a.m. Whether the State Bar provided Mr. Howell with adequate notice of the

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hearing is in dispute, but Mr. Howell was not present. The Superior Court entered an

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Order of Conservatorship at 9:05 a.m., which appointed Vessella conservator and

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instructed the State Bar to take possession of the files in Mr. Howell’s storage unit. That

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day, Mr. Howell brought his account with Arizona Storage Inns current, but was denied

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access to the storage unit pursuant to the Order of Conservatorship. Mr. Howell filed

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suit against Arizona Storage Inns, the State Bar, Hess, Furlong, Little, Scott, Vessella,

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and their spouses. Mr. Howell seeks $1.5 million in compensatory and punitive

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damages under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, Article II, § 8 of the

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Constitution of the State of Arizona, and the Fourth Amendment to the United States

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Constitution, for conspiracy to deprive him of his civil rights, several contract-related

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claims, negligence, and unlawful search and seizure. Furlong, Little, Scott, and

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Vessella are the only remaining defendants.
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III. STANDARD OF REVIEW

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Summary judgment is appropriate where “there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.”1 The materiality

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requirement ensures that “only disputes over facts that might affect the outcome of the

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suit under the governing law will properly preclude the entry of summary judgment.”2

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Ultimately, “summary judgment will not lie if the . . . evidence is such that a reasonable

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jury could return a verdict for the nonmoving party.”3 In resolving a motion for summary

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judgment, a court must view the evidence in the light most favorable to the non-moving

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party.4 The reviewing court may not weigh evidence or assess the credibility of

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witnesses.5 The burden of persuasion is on the moving party.6
IV. DISCUSSION

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A. Motion at Docket 93
The deadline for fact discovery is December 30, 2011, and the deadline for all

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discovery is February 29, 2012.7 Mr. Howell seeks to enlarge the time for discovery

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“until sixty (60) days after the current discovery disputes in this matter are resolved.”8 In

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his brief at docket 94, filed on November 2, 2011, Mr. Howell indicated that he would be

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Fed. R. Civ. P. 56(a).

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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Id.

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Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000).

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Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005).

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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Doc. 87 at 5.

Doc. 93 at 1. Mr. Howell also sought an enlargement of time to file a motion pursuant to
Rule 56(d), however, the court need not consider that request because Mr. Howell filed such a
motion the day before his response was due.

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“filing a companion Motion to Compel Discovery by the end of the week.”9 No motion to

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compel was filed. Mr. Howell is therefore seeking an indefinite extension of the time for

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discovery.

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Under Rule 16, “[a] schedule may be modified only for good cause and with the

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judge’s consent.”10 Mr. Howell argues that defendants responded to various discovery

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requests by incorrectly asserting that documents were privileged and that defendants

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failed to provide a privilege log. Mr. Howell has not, however, filed a motion to compel

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or presented his discovery dispute to the court in a manner by which it might be

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resolved. His failure to do so suggests that his motivation is delay. That conclusion is

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bolstered by defendants’ representation that Mr. Howell has not attempted to resolve

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the dispute informally. In any event, because the deadline for fact discovery has not

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passed, Mr. Howell has not demonstrated good cause to modify the scheduling order.

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B. Motion at Docket 94

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Under Federal Rule of Civil Procedure 56(d), “[i]f a nonmovant shows by affidavit

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or declaration that, for specified reasons, it cannot present facts essential to justify its

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opposition, the court may . . . defer considering the motion or deny it [or] issue any other

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appropriate order.”11 “A party requesting a continuance pursuant to Rule [56(d)] must

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identify by affidavit the specific facts that further discovery would reveal, and explain

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why those facts would preclude summary judgment.”12 Mr. Howell argues that

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defendants have failed to comply with their discovery obligations by wrongfully claiming

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that public documents are privileged. Mr. Howell maintains that the information he

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seeks will establish that defendants defrauded the state court when seeking a

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conservatorship, that defendants knowingly seized personal property and not just client

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Doc. 94 at 1.

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Fed. R. Civ. P. 16(b)(4).
Fed. R. Civ. P. 56(d)(1), (3).
Tatum v. City & County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006).

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files from Mr. Howell’s storage unit, that defendants were motivated by racial animus,

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that they conspired to deprive him of his civil rights, that they violated the Fourth

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Amendment, and that they lied to motivate individuals to file false complaints against

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him.13

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Mr. Howell has not shown that the discovery he plans to seek would reveal facts

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“essential to justify [his] opposition.”14 He has instead offered a series of legal

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conclusions that might follow from discoverable facts. By failing to state what facts the

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additional discovery would reveal, Mr. Howell has not shown that any discoverable

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information that he has not yet received would affect disposition of defendants’

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summary judgment motion. Moreover, as described above, Mr. Howell has not filed a

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motion to compel discovery, and his inaction belies his contention that the fruits of such

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a motion would preclude summary judgment. It is unnecessary for the court to defer

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consideration of defendants’ motion for summary judgment.

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C. Motion at Docket 89

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1. Arizona Supreme Court Rule 48(l)

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Defendants argue that they are immune from suit under Arizona Supreme Court

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Rule 48(l). That rule states that communications amongst participants in state bar

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disciplinary proceedings “shall be absolutely privileged conduct, and no civil action

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predicated thereon may be instituted against any complainant or witness.”15 It provides

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also that “state bar staff, and court staff shall be immune from suit for any conduct in the

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course of their official duties.”16 Mr. Howell’s claims against defendants arise out of

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conduct performed in the course of their official duties. To the extent Mr. Howell has

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Doc. 94 at 6.

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Fed. R. Civ. P. 56(d).
Ariz. R. Sup. Ct. 48(l).
Id.

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asserted state law claims against Furlong, Little, Scott or Vessella, defendants are

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immune. However, Rule 48(l) does not bear on Mr. Howell’s federal claims.

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2. 42 U.S.C. § 1981

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Section 1981 of Title 42 provides that “[a]ll persons . . . shall have the same right

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in every State . . . to make and enforce contracts, to sue, be parties, give evidence, and

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to the full and equal benefit of all laws and proceedings for the security of persons and

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property as is enjoyed by white citizens.”17 Claims brought under § 1981 require proof

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of intentional discrimination.18 Defendants maintain that they acted pursuant to their

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duties at the State Bar of Arizona and were motivated by an obligation to protect

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Mr. Howell’s client files. Mr. Howell has not offered any evidence suggesting otherwise.

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There is no genuine dispute as to any material fact bearing on this claim.

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3. 42 U.S.C. § 1985

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A claim under 42 U.S.C. § 1985 requires proof of “(1) a conspiracy; (2) for the

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purpose of depriving a person of the equal protection of the laws; (3) an act in

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furtherance of the conspiracy; (4) whereby a person is either injured in his person or

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property or deprived of a right or privilege of as United States citizen.”19 Defendants

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maintain that they were acting pursuant to Arizona Supreme Court Rule 66(a), which

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requires appointment of a conservator where “reasons requiring protection of the public

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are shown.”20 Defendants argue that Mr. Howell’s abandonment of client files warranted

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conservatorship proceedings. Mr. Howell has not offered any evidence that the

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conservatorship proceedings were intended to deprive Mr. Howell of equal protection of

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42 U.S.C. § 1981.
Gay v. Waiters’ and Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 537 (9th Cir.

1982).

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Mustafa v. Clark County School Dist., 157 F.3d 1169, 1181 (9th Cir. 1998).
Ariz. R. Sup. Ct. 66(a).

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the laws. There is no genuine dispute as to any material fact that would bear on Mr.

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Howell’s claim under § 1985.

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4. 42 U.S.C. § 1986

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Section 1986 of Title 42 renders liable “[e]very person who, having knowledge

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that any of the wrongs conspired to be done . . . in [42 U.S.C. § 1985], are about to be

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committed, and having power to prevent or aid in preventing the commission of the

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same, neglects or refuses to do so.”21 A successful claim under § 1986 requires proof

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of the elements of a claim under § 1985.22 Because Mr. Howell has not presented any

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evidence of a conspiracy intended to deprive him of his civil rights in violation of § 1985,

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he is unable to make out a claim under § 1986.

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5. Fourth Amendment

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Mr. Howell also alleges that defendants violated his Fourth Amendment rights by

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unlawfully seizing items from his storage unit. Mr. Howell lost any legitimate

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expectation of privacy that he had in his storage unit when he failed to make rental

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payments on the unit, and Arizona Storage Inns was accordingly granted a lien on the

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items it contained.23 Mr. Howell’s client files were removed from the storage unit

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pursuant to an order of conservatorship and with Hess’s permission. There is no

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genuine dispute as to any fact that would give rise to an unlawful search or seizure.

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V. CONCLUSION
For the reasons above, Mr. Howell’s motion at docket 93 for an enlargement of
the time for discovery is DENIED. The motion at docket 94 is also DENIED.

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42 U.S.C. § 1986.
See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988).
See doc. 36 at 8–9.

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Defendants’ motion at docket 89 for summary judgment pursuant to Rule 56 is
GRANTED. The Clerk shall please enter judgment for defendants.
DATED this 6th day of December 2011.

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/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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