Krug v. Maricopa County Superior Court et al

Filing 28

ORDER AND OPINION, the Motion at 12 is denied. Signed by Judge John W Sedwick on 3/26/15.(REW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Karyl Krug,

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Plaintiff,
vs.
Maricopa County Superior Court,
et al.,

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Defendants.
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2:14-cv-01320 JWS
ORDER AND OPINION
[Re:

Motion at Docket 12]

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I. MOTION PRESENTED
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At docket 12 plaintiff Karyl Krug (“Krug”) proceeding in propria persona filed a
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motion for reconsideration pursuant to Local Rule 7.2(g). In substance, Krug’s motion
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requests reconsideration or relief from the judgment entered against her at docket 9. If
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a motion for reconsideration is filed within 10 days of entry of judgment, as Krug’s
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motion was, it is treated as a motion to alter or amend judgment under Federal Rule of
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Civil Procedure 59(e).1 Defendants Maricopa County Superior Court, et al. (collectively,

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“defendants”) filed an opposition at docket 27. Oral argument was not requested but
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would not assist the court.
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Am. Ironworks & Erectors, Inc. v. N. Am. Const. Corp., 248 F.3d 892, 898-99 (9th Cir.
2001); Teamsters Local 617 Pension & Welfare Funds v. Apollo Grp., Inc., 282 F.R.D. 216, 220
(D. Ariz. 2012) (holding that Local Rule 7.2(g) applies to challenges to orders, not judgments).

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II. BACKGROUND
The background giving rise to this lawsuit is set out in detail in the court’s earlier

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order at docket 7 and need not be repeated here. In that order the court g ranted

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defendants’ motion to dismiss Krug’s complaint for failure to state a claim. Thereafter,

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judgment was entered that Krug take nothing.

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III. STANDARD OF REVIEW
“[R]econsideration of a judgment after its entry is an extraordinary remedy which

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should be used sparingly.”2 District courts enjoy considerable discretion in granting or

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denying a motion to reconsider. 3 “In general, there are four basic grounds upon which a

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Rule 59(e) motion may be granted: (1) if such motion is necessary to correct manifest

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errors of law or fact upon which the judgment rests; (2) if such motion is necessary to

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present newly discovered or previously unavailable evidence; (3) if such motion is

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necessary to prevent manifest injustice; or (4) if the amendment is justified by an

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intervening change in controlling law.”4 A Rule 59(e) motion may not be used to raise

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arguments or present evidence that could have been raised prior to the entry of

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judgment.5

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IV. DISCUSSION
Krug argues that reconsideration of the judgment is necessary to correct the

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following five manifest errors of fact or law upon which the judgment rests: (1) the court

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misapplied Rule 12(b)(6); (2) the court made an inappropriate credibility determination

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based on a deceptive exhibit; (3) the court violated Rule 12(d) by not giving the parties

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sufficient notice that it would review evidence outside the pleadings; (4) the court erred

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in ruling that the complaint does not address an obvious alternative explanation for

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11 C. Wright & A. Miller, Federal Practice and Procedure § 2810.1 (3d ed. 2004)
(hereinafter “Wright & Miller”).

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Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011).
Id.

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11 Wright & Miller § 2810.1.

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Krug’s termination; and (5) the court erred in ruling that it would be futile to allow Krug

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to amend her complaint to name Maricopa County as a defendant.

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A.

The Court Properly Applied Rule 12(b)(6)

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Krug argues that the court misapplied Rule 12(b)(6) by not construing the

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complaint in the light most favorable to Krug6 and by inappropriately relying on Ashcroft

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v. Iqbal.7 These arguments lack merit.

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With regard to Krug’s first argument, the only matter that Krug challenges with

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specificity is the court’s conclusion that the only factual support in her complaint for her

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claim that she was fired in retaliation for protected speech is the timing of her

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termination.8 Krug argues that this conclusion is “insupportable” because of “the

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copious factual recitations set out in” her complaint. Because Krug’s motion does not

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cite a single one of these factual recitations, and because her retaliatory termination

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claims are supported by legal conclusions, not facts, Krug’s argument fails.

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With regard to Krug’s second argument, Krug argues that Iqbal’s “‘plausibility’

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analysis” does not apply because the defendants in this case are not “geographically

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remote.”9 Krug cites no authority to support her argument that if there is no “geographic

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remoteness of the parties” a complaint need not allege plausible claims. This argument

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lacks merit.

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B.

The Court Did Not Make a Credibility Determination Based on Exhibit 1, and
Exhibit 1 Is Not Deceptive

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In its dismissal order the court held that the facts in Krug’s complaint are
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consistent with her retaliatory termination claims, but insufficient to render those claims
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plausible. The court bolstered this conclusion by observing that the complaint does not
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Doc. 12 at 3-4.

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556 U.S. 662 (2009).
Doc. 7 at 6-7.
Doc. 12 at 15.

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adequately address an obvious alternative explanation for Krug’s termination: the

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inappropriate language Krug used in an email to defendant Diane Alessi (“Alessi”).

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Krug’s complaint mentions the email in several locations,10 and defendants provided a

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copy of it to the court as Exhibit 1 to their motion to dismiss.

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Krug now asserts that the court determined she is not credible based on

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Exhibit 1 and that Exhibit 1 is incomplete and therefore deceptive. As to Krug’s former

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assertion, the court made no such credibility determination. Further, Krug’s assertion

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that Exhibit 1 is deceptive is unpersuasive because Krug effectively admits in her

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opposition that Exhibit 1 shows her “discourtesy” and “lack of civility” toward Alessi.11

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C.

The Court Did Not Consider Evidence Outside the Pleadings
Krug next argues that the court violated Rule 12(d) by considering evidence

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outside the pleadings (Exhibit 1 to defendants’ motion to dismiss) without giving the

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parties a reasonable opportunity to present all pertinent material. Krug raised this same

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argument in opposition to defendants’ motion to dismiss.12 But, as the court pointed out

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in its dismissal order, evidence is not “outside” the complaint if the complaint specifically

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refers to it and if its authenticity is not questioned.13 Krug has never disputed that her

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complaint refers to the email found in Exhibit 1,14 nor has she questioned that exhibit’s

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See Doc. 1 at 11 ¶¶ 79-80; id. at 12 ¶ 84.
Doc. 5 at 8.

See id. at 1 (“Defendants raise the motion under 12(b)(6), but also argue for summary
judgment, especially as they submit documents extraneous to the Complaint.”).
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See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds
by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (“[D]ocuments whose
contents are alleged in a complaint and whose authenticity no party questions, but which are
not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion
to dismiss.”).
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See Doc. 1 at 11 ¶¶ 79-80.

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authenticity. To the contrary, Krug admits that Exhibit 1 shows “an e-mail exchange

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between Krug and Defendant’s [sic] Alessi and Westover.”15

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D.

The Court Correctly Ruled That the Complaint Does Not Address an
Obvious Alternative Explanation for Krug’s Termination

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Krug argues that the court erred in ruling that her complaint fails to address the
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possibility that she was terminated not for her protected speech, but for using
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unprofessional language in her email to Alessi. Plaintiff asserts that this ruling is
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incorrect because she addresses that email in her opposition to defendants’ motion. In
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her opposition, Krug states:
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Clearly, the Defendants’ [sic] intend to defend themselves with an obvious
pretext, that Krug’s alleged discourtesy to Defendant Alessi somehow
trumps all the public interests concern [sic] addressed in the previous
sections, and is the real reason that Krug was terminated. Given the
remedial actions the Defendants took after having fired Krug, it seems
unlikely that a lack of civility to co-Defendant Alessi was the real reason
Krug was terminated. It seems probable that the criminal liability of all the
Defendants was at the heart of this illegal retaliation against Krug.16

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The fact remains, however, that Krug’s complaint does not address the possibility that

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she was terminated for using unprofessional language. Krug’s argument that this

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possibility is unlikely is conclusory and unpersuasive.

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E.

The Court Correctly Ruled That It Would Be Futile to Allow Krug to Amend
Her Complaint to Name Maricopa County As a Defendant

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Finally, Krug argues that it would not be futile to allow her to amend her
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complaint to add Maricopa County as a defendant. The basis for this argument is her
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“impression that she was a hybrid Maricopa County” and Maricopa County Superior
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Court employee and, therefore, maybe Maricopa County would have to satisfy a
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potential judgment in this case. 17 Because Krug does not provide any evidence or legal

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authority that shows that she was actually employed by Maricopa County, nor does she
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Doc. 5 at 7.
Id. at 8.
Doc. 12 at 16-17.

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explain why she was unable to present such evidence or authority in opposition to

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defendants’ motion to dismiss, Krug’s argument lacks merit.

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V. CONCLUSION

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For the reasons above, the motion at docket 12 is DENIED.

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DATED this 26th day March 2015.

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/s/ JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE

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