Harris v. Arizona Board of Regents et al

Filing 78

ORDER denying 77 Motion for Reconsideration and 76 Motion to Vacate/Set Aside/Withdraw/Reassign Case. Plaintiff shall file no further motions in this case. Signed by Judge David G Campbell on 9/19/17.(DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Russell Harris,

No. CV16-04029 PHX DGC
Plaintiff,

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ORDER

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v.

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Arizona Board of Regents, et al.,

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Defendants.

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Plaintiff asks the Court to reconsider its order granting Defendants’ motion to

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dismiss. Doc. 77. The Court will deny the motion.

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I.

Legal Standard.

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Courts in this district have identified four circumstances where a motion for

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reconsideration will be granted: (1) the moving party has discovered material differences

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in fact or law from those presented to the Court at the time of its initial decision, and the

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party could not previously have known of the factual or legal differences through the

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exercise of reasonable diligence; (2) material factual events have occurred since the

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Court’s initial decision; (3) there has been a material change in the law since the Court’s

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initial decision; or (4) the moving party makes a convincing showing that the Court failed

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to consider material facts that were presented to the Court at the time of its initial

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decision. See, e.g., Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D.

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581, 586 (D. Ariz. 2003). Motions for reconsideration are disfavored, and they are not

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the place for parties to make new arguments not raised in their original briefs. See Nw.

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Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988).

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II.

Discussion.

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Plaintiff first argues that the Superior Court decision could not have given rise to

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claim preclusion because it was a dismissal for lack of jurisdiction. Plaintiff also argues

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that the dismissal was not final.

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Defendants’ motion that the state-court dismissal was for lack of subject matter

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jurisdiction (see Doc. 45 at 4) and cannot raise that argument for the first time in this

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motion for reconsideration. Second, the state-court dismissal was not necessarily for lack

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of subject matter jurisdiction. Defendants argued that Arizona State University (“ASU”)

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has discretion to determine whether a student’s academic performance meets program

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standards and has no legal duty to retain a student whose performance is deficient.

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Doc. 23-1 at 3. Defendants also argued that ASU’s decision was not subject to review

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under the Administrative Review Act (Doc. 23-1), but the Court did not mention that

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argument in its ruling (Doc. 23-2 at 5-6).

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expressly a final judgement under Rule 54(c) of the Arizona Rules of Civil Procedure.

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See Doc. 23-2 at 6.

First, Plaintiff did not argue in his response to

Third, the Superior Court decision was

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Second, Plaintiff argues that the Court incorrectly stated that he sued four ASU

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employees in state court when he actually sued only one. Plaintiff explains that state-

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court documents naming four employees did not count because they never became the

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operative complaint in state court. Even if this is true, the basis for the Court’s ruling

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was not dependent on the number of employees sued in state court. The Court noted that

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Plaintiff sued the state employees in state court and this Court in their official capacities,

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and that “ASU employees sued in their official capacities will necessarily be in privity

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with one another and with Defendant ASU.” Doc. 73 at 4.

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Third, Plaintiff argues that the Court should have applied the test for claim

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preclusion in Garity v. APWU National Labor Org., 828 F.3d 848, 855 (9th Cir. 2016).

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The Court does not agree. “It is now settled that a federal court must give to a state-court

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judgment the same preclusive effect as would be given that judgment under the law of the

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State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ.,

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465 U.S. 75, 81 (1984); accord Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir.

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1990). The Court appropriately looked to Arizona law to determine the preclusive effect

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of the state-court decision.

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But even if the Court had applied Garity – which Plaintiff did not cite in his claim-

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preclusion argument in this Court (Doc. 45 at 4-5) – the result would have been the same.

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To determine if there is an identity of claims, Garity looked to four factors: (1) whether

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the two suits arise out of the same transactional nucleus of facts, (2) whether rights or

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interests established in the prior judgment would be destroyed or impaired by prosecution

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of the second action, (3) whether the two suits involve infringement of the same right;

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and (4) whether substantially the same evidence is presented in the two actions. 828 F.3d

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at 855. These factors show that claim preclusion was properly applied here. First, this

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case and the state-court case clearly arose from the same transactional nucleus of

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operative facts – Plaintiff’s termination from the ASU master’s program for reasons

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allegedly related to his mental disability. Second, the state court held that Plaintiff could

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not maintain his suit, and did so in the face of Plaintiff’s ADA arguments and his request

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for $500,000 in damages. Doc. 71-1 at 5-8. Defendants’ victory in that case would be

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destroyed or impaired if Plaintiff were permitted to raise the same issues in this court.

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Third, the two suits concerned the same right – Plaintiff’s claim that he should have been

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permitted to continue in the master’s program as “a mentally handicapped student.”

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Doc. 71-1 at 7. Fourth, substantially the same evidence applied in both actions. Plaintiff

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argued in state court that he “suffers from a mental disability and requested

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accommodations for his disability,” and that he was terminated from the ASU program

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for complaining about the lack of accommodations. Id. at 4. Substantially the same facts

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are at issue here – Plaintiff claims that he is disabled and was retaliated against for

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asserting his rights. Doc. 35 at 1.

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Fourth, Plaintiff argues that he was wrongly denied an opportunity to amend his

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complaint. But Plaintiff had already filed three complaints in this case (Docs. 1, 26, 35)

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and had proposed a fourth (Doc. 67), none of which stated a claim that was not barred by

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claim preclusion.

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Fifth, Plaintiff argues that the Court acted improperly when it required him to

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provide the Court with a copy of his state-court response to the state-court motion to

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dismiss. Plaintiff contends that the Court should have reviewed his motion to withdraw

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that document and should have recused itself from this case. See Doc. 76. Plaintiff’s

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motion to withdraw argued that the Court was without justification in requiring the state-

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court document to be filed. Clearly this is incorrect. The Court needed Plaintiff’s state-

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court filing in order to identify the issues that were litigated in state court, and acted

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entirely within its authority in requiring Plaintiff to file it. There is no basis for recusal.

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Finally, Plaintiff asserts that the Court acted improperly in ordering him to stop

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sending emails to and calling chambers. See Doc. 72. Plaintiff’s abusive communications

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with the Court’s staff were entirely inappropriate, and the Court acted properly in

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ordering him to communicate with the Court only through filings in the docket.

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IT IS ORDERED:

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1.

Plaintiff’s motion for reconsideration (Doc. 77) is denied.

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2.

Plaintiff’s motion to vacate/set aside/withdraw/reassign/recuse (Doc. 76) is
denied.

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3.

Plaintiff shall file no further motions in this case.

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Dated this 19th day of September, 2017.

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