Riley v. Prescott, City of et al

Filing 312

ORDER - denying 266 Defendants' Motion for Summary Judgment; ORDERED denying 271 Riley's Motion for Partial Summary Judgment; Riley's Motion for Discovery Sanctions (Doc. 271 ) is granted in part and denied in part as set forth i n the attached Order. The parties shall submit proposed adverse inference instructions with the other jury instructions to be filed before trial. ORDERED that the parties are directed to confer in good faith to resolve any disputes concerning the am ount of reasonable expenses and fees related to defendants' spoliation. If the parties are unable to agree, Riley may file a motion pursuant to Local Rule 54.2. See attached Order for details. ORDERED denying 285 Defendants' Cross-Motion for Discovery Sanctions; ORDERED denying 296 Riley's Motion to Strike and ORDERED denying 301 Defendants' Cross-Motion to Strike. Signed by Senior Judge James A Teilborg on 2/18/2014.(TLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kay Anne Riley,

No. CV-11-08123-PCT-JAT

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Plaintiff,

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v.

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ORDER

City of Prescott, Arizona, a political
subdivision; Marlin Kuykendall,
individually and in his official capacity as
Mayor of the City of Prescott, and Tana
Kuykendall, husband and wife,

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Defendants.

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Pending before the Court are defendant City of Prescott, Marlin Kuykendall, and

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Tana Kuykendall’s (collectively, the “Defendants”) Motion for Summary Judgment

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(Doc. 266) and Plaintiff Kay Anne Riley’s Motion for Partial Summary Judgment (Doc.

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271).

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Sanctions (Docs. 271, 285) related to the spoliation of email evidence. Also pending are

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Plaintiff’s and Defendants’ Cross-Motions to Strike (Docs. 296, 301) various portions of

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their several opposing statements of facts (Docs. 267, 272, 280, 286, 288, 292). All six

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motions are fully briefed and oral argument on the motions was held on February 11,

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2014. The Court now rules on the motions.

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I.

Also pending are Plaintiff’s and Defendants’ Cross-Motions for Discovery

BACKGROUND

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For purposes of the Court’s resolution of the pending summary judgment motion,

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the Court considers the relevant facts and background, viewed in the non-moving party’s

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favor,1 to be as follows.
Plaintiff Kay Anne Riley (“Riley”) was employed by the Yavapai Human Society

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(“YHS”) from July 2009 to November 2010.

(Plaintiff’s Response to Defendants’

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Statement of Facts and Additional Statement of Fact in Opposition to Defendants’

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Motion for Summary Judgment (“PCSOF”), Doc. 280 ¶¶ 21, 106; City of Prescott

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Defendants’ Separate Statement of Facts in Support of Motion for Summary Judgment

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(“DSOF”), Doc. 267 ¶¶ 21, 106). Riley was originally hired as the Marketing Manager

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for YHS and was later promoted to Marketing and Development Director. (PCSOF

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¶ 21). During the relevant time period, YHS offered animal sheltering and other services

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to the City of Prescott, operated out of a City of Prescott building, and had a contract with

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the City of Prescott that provided significant funding for YHS’s activities. (Plaintiff’s

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Statements of Fact in Support of Motion for Partial Summary Judgment (“PSOF”), Doc.

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272 ¶¶ 3–4, 7; City of Prescott Defendants’ Controverting Statement of Facts Regarding

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Plaintiff’s Statement of Facts in Support of Plaintiff’s Motion for Partial Summary

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Judgment (“DCSOF”), Doc. 286 ¶¶ 3–4, 7). During all relevant time periods, defendant

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Marlin Kuykendall (“Mayor Kuykendall”) was the elected mayor of the City of Prescott.

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(PSOF ¶ 11).

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In October 2010, Riley co-founded a group called “Prescott Citizens Against

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Bullies” (“PCAB”) for the purposes of raising community awareness of alleged injustice

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committed against a former City of Prescott employee, Ms. Castaneda. (PCSOF ¶ 37).

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On October 26, 2010, Riley issued a press release on behalf of the PCAB regarding a

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planned November 1 protest against Mayor Kuykendall and various city officials for their

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purported involvement in the termination of Ms. Castaneda’s employment and her

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subsequent arrest. (PSOF ¶ 9).

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Between October 26 and October 28, Mayor Kuykendall, his assistant, his

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campaign manager, and other city officials (including councilmembers) communicated

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In the summary judgment context, the Court construes all disputed facts in the
light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075
(9th Cir. 2004).
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displeasure with Riley’s planned protest, conduct, and speech to each other and to YHS

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board member Marty Goodman (“Goodman”) and Executive Director Ed Boks (“Boks”).

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(PSOF ¶¶ 12–13, 15–22). On October 28, 2010, YHS placed Riley on administrative

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leave without pay through November 1. (PSOF ¶ 23). Afterwards, Mayor Kuykendall,

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various city officials, YHS board members, and others continued to communicate

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regarding Riley’s planned protest, conduct, and speech. (PSOF ¶¶ 24–30, 33). On

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October 29, Mayor Kuykendall held a press conference to address the Ms. Castaneda

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matter and the planned protest. (PSOF ¶ 31).

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On November 1, Riley participated in the peaceful PCAB protest. (PSOF ¶ 34).

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The protest received local media coverage both before and after it took place. (PSOF

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¶¶ 14, 16, 25, 34, 38; PCSOF ¶¶ 61, 64, 70). Both before and after the protest, Riley

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posted several messages on Facebook and other media expressing her opinions regarding

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Mayor Kuykendall and city officials’ bullying tactics and abuse of power against Ms.

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Castaneda and herself. (PSOF ¶¶ 12, 25, 30, 39; PCSOF ¶¶ 42–44, 46–47, 50, 54, 79–

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80).

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On November 2, Boks notified Riley that her administrative leave was extended

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indefinitely. (PSOF ¶ 41). On November 4, Riley met with Boks and another YHS

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employee to discuss Riley’s employment at YHS. (PSOF ¶ 50). During the meeting,

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Boks expressed concern that the City of Prescott might terminate their contract with YHS

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because of Riley’s protest, conduct, and speech. (PSOF ¶¶ 51–53). On November 12,

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YHS terminated Riley’s employment. (PSOF ¶ 55).

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On March 1, 2011, Riley served a Notice of Claim on the City of Prescott and

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Mayor Kuykendall regarding Riley’s allegations that the city officials retaliated against

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Riley’s protest, conduct, and speech by threatening economic harm to YHS unless it

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terminated her employment.

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Complaint (Doc. 1) and commenced the present litigation.

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II.

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(PSOF ¶ 56).

On August 10, 2011, Riley filed the

CROSS-MOTIONS FOR SUMMARY JUDGMENT
Defendants move (Doc. 266) for Summary Judgment on Counts I (42 U.S.C.

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§ 1983) and III (Tortious Interference With Employment Relationship Under Arizona

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State Law) of Plaintiff’s Complaint (Doc. 1).2 Plaintiff cross-moves (Doc. 271) for

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Summary Judgment on Count III.

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A.

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Summary judgment is appropriate when “the movant shows that there is no

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genuine issue as to any material fact and that the moving party is entitled to summary

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judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting that a fact cannot

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be or is genuinely disputed must support that assertion by “citing to particular parts of

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materials in the record,” including depositions, affidavits, interrogatory answers or other

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materials, or by “showing that materials cited do not establish the absence or presence of

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a genuine dispute, or that an adverse party cannot produce admissible evidence to support

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the fact.” Id. at 56(c)(1). Thus, summary judgment is mandated “against a party who

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Legal Standard for Summary Judgment

fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Initially, the movant bears the burden of pointing out to the Court the basis for the
motion and the elements of the causes of action upon which the non-movant will be
unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to
the non-movant to establish the existence of material fact. Id. The non-movant “must do
more than simply show that there is some metaphysical doubt as to the material facts” by
“com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.’ ”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586B87 (1986) (quoting
Fed. R. Civ. P. 56(e) (1963) (amended 2010)). A dispute about a fact is “genuine” if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant’s bare

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The remaining claims (Counts II, IV, V, VI, and VII) in Plaintiff’s Complaint
(Doc. 1) were previously dismissed by the Court (Doc. 38).
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assertions, standing alone, are insufficient to create a material issue of fact and defeat a

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motion for summary judgment.

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determinations, the weighing of the evidence, and the drawing of legitimate inferences

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from the facts are jury functions, not those of a judge, . . . [t]he evidence of the non-

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movant is to be believed, and all justifiable inferences are to be drawn in his favor” at the

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summary judgment stage. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,

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158–59 (1970)); Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999) (“Issues of

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credibility, including questions of intent, should be left to the jury.”) (internal citations

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omitted).

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B.

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Riley alleges that she is entitled to relief under § 1983 because she was terminated

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from YHS in retaliation for her exercise of First Amendment rights. (Doc. 1 at 14–17,

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¶¶ 79–99).

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Section 1983 provides,

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Id. at 247B48.

Further, because “[c]redibility

Count I: 42 U.S.C. § 1983

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Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law
. . . .”

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Defendants argue that they are entitled to summary judgment because there is no dispute

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of material fact that (1) § 1983 is not available in the instant circumstances; (2)

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Defendants took no unconstitutional action; (3) the City of Prescott and Mayor

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Kuykendall, in his official capacity, are not liable under § 1983 for the alleged actions;

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and (4) Mayor Kuykendall, in his individual capacity, is entitled to qualified immunity.

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(Doc. 266 at 6–14).

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1.

Riley Can Maintain a § 1983 Claim

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Both parties agree (Doc. 266 at 6–7; Doc. 279 at 4, 6–7) that the Court must

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evaluate Riley’s § 1983 claim through the lens of the Ninth Circuit Court of Appeals’
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decision in Clairmont v. Sound Mental Health because Riley was a private employee of

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YHS, an independent contractor for the City of Prescott, and not a public employee of the

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City of Prescott. 632 F.3d 1091 (2011) (holding that § 1983 can protect the private

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employee of a government contractor from governmental retaliation for the employee’s

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exercise of First Amendment rights). Defendants contend, however, that as a threshold

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matter, Clairmont requires Riley to show that Defendants “directly commanded adverse

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action against [Riley] or threatened to exert economic pressure on [YHS] if adverse

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action as not taken against” Riley. (Doc. 266 at 6–7 (emphasis added)). Defendants

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further argue that “overwhelming” evidence demonstrates that Defendants never directly

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commanded or threatened YHS. (Id. at 7 (citing DSOF ¶¶ 120–70)).

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Defendants’ insistence that Riley prove “direct” government action, however,

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mischaracterizes the threshold requirement of Clairmont. In Clairmont, the Court of

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Appeals explicitly opined that “First Amendment protection does not depend on whether

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the governmental action is direct or indirect.” 632 F.3d at 1100. Rather, “[w]here the

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government may not prohibit certain speech, it also may not threaten to exert economic

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pressure on a private employer in order to ‘produce a result which [it] could not

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command directly.’ ” Id. (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)

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(alteration in original) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958))). Thus,

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Clairmont applies and Riley may claim protection from § 1983 whether Defendants

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exerted direct or indirect pressure on YHS to adversely act against Riley.

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Here, it is undisputed that during the relevant time period, YHS had a contract

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with the City of Prescott wherein the City of Prescott provided YHS with the use of a

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building and significant funding. (See PSOF ¶¶ 3–7; DCSOF ¶¶ 3–7; DSOF ¶ 14;

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PCSOF ¶ 14). The City of Prescott could terminate the YHS contract without cause.

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(PSOF ¶ 4; DCSOF ¶ 4). Additionally, sometime between Fall 2010 and Summer 2011,

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the YHS contract was being renegotiated for renewal. (PSOF ¶ 8; DCSOF ¶ 8). It is also

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undisputed that, at deposition, Mayor Kuykendall, various YHS board members, and

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some Prescott city council members testified that Defendants were not involved in the

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termination of Riley’s employment by YHS. (See DSOF ¶¶ 120–70; PCSOF ¶¶ 120–70).

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Riley, however, presents copious evidence calling into dispute the truthfulness and

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credibility of these assertions. (See, e.g., PCSOF ¶¶ 120–70; PSOF ¶¶ 17–18, 21–25, 29,

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33, 42).3 For example, although Mayor Kuykendall and Goodman claim that they never

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conversed with each other regarding Riley’s YHS employment status (DSOF ¶¶ 126,

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147), Riley presents an October 28, 2010 email from Goodman (a YHS board member) to

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Mayor Kuykendall stating

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[Mayor Kuykendall],

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Just so you know, I had a meeting this morning with Ed Boks,
Director of Yavapai Humane Society. [Riley] has now been
placed on administrative leave and we will review this
situation in more detail at our Board Meeting on Monday. I
can assure you that this matter is of our utmost concern we
sincerely regret any problems caused by her activities.

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Marty [Goodman]

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(PSOF ¶ 24 (quoting Ex. 6 of Kuykendall Dep., PSOF at Ex. 23); see DCSOF ¶ 24).

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Similarly, although Mayor Kuykendall testified that he “has never commented to

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anybody that Riley’s activities were affecting the relationship between YHS and the

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City” (DSOF ¶ 152), Riley presents deposition testimony from Councilwoman Suttles

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stating that, after the protest, she discussed Riley and YHS’s funding with Mayor

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Kuykendall. (PCSOF ¶ 152). Specifically, Councilwoman Suttles testified that she and

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Defendants object to some of this evidence as inadmissible hearsay. (Doc. 287 at
2–4; DCSOF ¶¶ 18, 21–22, 25, 29, 33). The Court, however, should consider evidence
subject to a potential hearsay objection because it is inappropriate to focus on the
admissibility of the evidence’s form at the summary judgment stage. Fraser v. Goodale,
342 F.3d 1032, 1036 (9th Cir. 2003). The focus at the summary judgment stage in the
proceeding is the admissibility of its contents. Id. Here, the various emails and
documents at issue were purportedly written by various witnesses who have been
deposed and may be called to testify at trial. Consequently, the contents of the emails
and documents could be admitted into evidence at trial in a variety of ways. For
example, the emails and documents potentially could be used to refresh a witness’
recollection, Fed. R. Evid. 602, or as a prior inconsistent statement for impeachment
rather than substantive purposes. Fed. R. Evid. 613(b); see United States v. Adamson,
291 F.3d 606, 612 (9th Cir. 2002); United States v. White, 68 F. App’x 870 (10th Cir.
2003).

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Mayor Kuykendall discussed that “if the city was going to help fund [YHS], how could

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those people come down and do such a protest” (January 30, 2013 Deposition of Mary

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Ann Suttles, PCSOF, Ex. 8 at 42:19–43:20), and “that if the city is paying for [Riley] to

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be part of an organization that is taking care of these animals, how – how do you handle

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it?” (Id. at 45:2–10). In sum, if the numerous issues of credibility and conflicting

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testimony presented by Riley are viewed in a light favorable to Riley, then the summary

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judgment record could reasonably support a factual finding that Defendants exerted at

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least indirect economic pressure on YHS to adversely act against Riley. Accordingly,

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Riley meets the threshold requirement of Clairmont to pursue her § 1983 claim.

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2.

Defendants May Have Taken Unconstitutional Actions

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Throughout their Motion, Defendants generally argue that they took no

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unconstitutional actions. (Doc. 266 at 6–14 (“the Court can start and end by concluding

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that the facts fail to show that Mayor Kuykendall engaged in any unconstitutional

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activity”); Doc. 287 at 2–4 (“The first, and foremost, position taken by the City of

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Prescott Defendants is that they took no unconstitutional action in relation to Plaintiff

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Riley’s employment with YHS.”)).

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Before addressing whether Riley has demonstrated that Defendants violated her

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constitutional rights, the Court must first determine whether Riley should be considered a

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governmental employee or a private citizen. Clairmont, 632 F.3d at 1100; Pickering v.

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Bd. of Educ., 391 U.S. 563, 568 (1968) (the State has interests as an employer in

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regulating the speech of its employees that differ significantly from those it possesses in

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connection with regulation of the speech of the citizenry in general”). Although it is not

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in dispute that Riley was a private employee of an independent contractor of the City of

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Prescott, both parties appear to contend that she should be treated as a governmental

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employee for purposes of evaluating her First Amendment free speech rights. (Doc. 266

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at 11; Doc. 279 at 3). Thus, the Court, too, will treat Riley as a government employee for

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the purposes of evaluating her First Amendment free speech rights.

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Clairmont sets out the five-part balancing test to determine whether a

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governmental employee has alleged a violation of her First Amendment rights as a result

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of government retaliation for her speech:

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(1) whether the plaintiff spoke on a matter of public concern;
(2) whether the plaintiff spoke as a private citizen or public
employee; (3) whether the plaintiff’s protected speech was a
substantial or motivating factor in the adverse employment
action; (4) whether the state had an adequate justification for
treating the employee differently from other members of the
general public; and (5) whether the state would have taken the
adverse employment action even absent the protected speech.

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632 F.3d at 1102–03 (quoting Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.

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2009)). The plaintiff bears the burden of proof on the first three areas of inquiry, but the

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burden shifts to the government to prove the last two.4 Ellins v. City of Sierra Madre,

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710 F.3d 1049, 1056 (9th Cir. 2013).
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Riley’s Speech was on a Matter of Public Concern

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The Court has “defined the scope of the public concern element broadly and

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adopted a liberal construction of what an issue of public concern is under the First

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Amendment.” Desrochers v. City of San Bernardino, 572 F.3d 703, 709–10 (9th Cir.

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2009) (internal quotation marks and citations omitted).

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“Speech involves a matter of public concern when it can
fairly be considered to relate to ‘any matter of political,
social, or other concern to the community.’ ” Johnson v.
Multnomah Cnty., 48 F.3d 420, 422 (9th Cir. 1995) (quoting
Connick v. Myers, 461 U.S. 138, 146 (1983)). Speech that
deals with “individual personnel disputes and grievances” that
“would be of no relevance to the public’s evaluation of the
performance of governmental agencies” generally is not of
public concern. McKinley v. City of Eloy, 705 F.2d 1110,
1114 (9th Cir. 1983). “Whether an employee’s speech
addresses a matter of public concern must be determined by
the content, form, and context of a given statement, as
revealed by the whole record.” Connick, 461 U.S. at 147–48
(1983).

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Ellins, 710 F.3d at 1057.

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Of course, this division of burdens should not be construed as affecting
Defendants’ ultimate burden on summary judgment of demonstrating “that there is no
genuine issue as to any material fact and that the moving party is entitled to summary
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
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Here, it is undisputed that on October 26, 2010, Riley issued a press release on

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behalf of a group called “Prescott Citizens Against Bullies” (“PCAB”) that called for a

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November 1 protest regarding the arrest of former City employee Ms. Castaneda. (PSOF

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¶ 9, Ex. 17; DCSOF ¶ 9). PCAB alleged that Ms. Castaneda had been fired and arrested

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for whistleblowing against the City of Prescott.

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concerned citizens “to join in this peaceful civil protest at City Hall.” Id. Additionally,

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the press release explained that the purpose of the protest was to oppose the perceived

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retaliation against Ms. Castaneda, excessive force used by the police when arresting Ms.

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Castaneda, and “ongoing threats, intimidation, and bullying towards Ms. Castaneda and

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her supporters by the Mayor” and others. Id. Such matters are clearly of public concern.

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See Eng, 552 F.3d at 1072 (finding that speech that deals with the functioning of

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government is a matter of inherent public concern); Freitag v. Ayers, 468 F.3d 528, 545

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(9th Cir. 2006) (speech that helps the public evaluate the performance of public agencies

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addresses a matter of public concern); Alpha Energy Savers, Inc. v. Hansen, 381 F.3d

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917, 925 (9th Cir. 2004) (speech alleging that the government engaged in discrimination

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or other civil rights violations is on a matter of public concern); Hyland v. Wonder, 972

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F.2d 1129, 1137 (9th Cir. 1992) (speech discussing “threats to public safety” is “of vital

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interest to citizens,” and speech exposing policies that put people in jeopardy is

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“ ‘inherently of interest to the public.’ ”) (quoting Roth v. Veteran’s Admin., 856 F.2d

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1401, 1406 (9th Cir. 1988)).

Id.

Riley’s press release invited

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Moreover, on October 29, prior to the protest, Mayor Kuykendall and other city

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officials held a press conference addressing the Ms. Castaneda matter. (PSOF ¶ 31;

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DCSOF ¶ 31). The holding of this press conference strongly implies that Defendants

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believed the subject matter of the protest was a matter of public concern. The media

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coverage received by the protest further evidences its public nature. (See PSOF ¶¶ 14,

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16, 38; DCSOF ¶¶ 14, 16, 38). Thus, regardless of any personal animus Riley may have

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harbored towards Mayor Kuykendall, Riley’s speech appears to have been on a matter of

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public concern.

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b.

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Riley’s Speech was not Part of Her Official Duties at YHS

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Riley must also demonstrate that the speech in question “was spoken in the

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capacity of a private citizen and not a public employee.” Eng, 552 F.3d at 1071. A

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public employee’s speech is not protected by the First Amendment when it is part of the

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employee’s official job duties. Garcetti v. Ceballos, 547 U.S. 410, 426 (2006). Whether

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an employee’s disputed speech is part of his official duties presents a mixed question of

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fact and law. Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th

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Cir. 2008). For purposes of considering whether Riley spoke in a public or private

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capacity, at the summary judgment stage we resolve any material factual disputes in

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Riley’s favor. Huppert v. City of Pittsburg, 574 F.3d 696, 701 (9th Cir. 2009).

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Initially, the Court notes that Defendants’ argument that Riley spoke in a public

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capacity consists of a single conclusory sentence devoid of citations to the factual

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record.5 (Doc. 266 at 12). This single sentence fails to meet Defendants’ burden of

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demonstrating that there is no genuine issue of material fact on this point. See Nissan

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Fire & Marine Ins. Co., Ltd. V. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir.

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2000) (“In order to carry its burden of production, the moving party must either produce

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evidence negating an essential element of the nonmoving party’s claim or defense or

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show that the nonmoving party does not have enough evidence of an essential element to

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carry its ultimate burden of persuasion at trial.”) (citing High Tech Gays v. Defense

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Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990)). Regardless, it is

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undisputed that Riley had no marketing or public relations responsibility to the City of

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Prescott. (See DSOF ¶¶ 10, 16, 21, 23; PCSOF ¶¶ 10, 16, 21, 23; PSOF ¶ 2; DCSOF

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¶ 2). It is also undisputed that Riley helped organize and attended the protest on her own

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personal time, took steps to ensure that her conduct was not attributable to YHS, and

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YHS did not assist or endorse Riley’s actions or speech. (DSOF ¶¶ 49, 51, 67, 68;

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“Riley’s intentional introduction of YHS into her ‘speech,’ as well as her
attempts to use her YHS-related public persona to advance herself, tends to show that she
was speaking, not as a public citizen, but in her continuing role as YHS spokesperson.”
(Doc. 266 at 12).
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PCSOF ¶¶ 49, 51, 67, 68). Consequently, Riley’s speech was not part of her official

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duties at YHS; she spoke in the capacity of a private citizen and not a public employee.

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c.

Riley’s Speech May Have Been a Substantial Motivating
Factor in Her Termination

“The third inquiry—whether [Riley’s] testimony was a substantial or motivating
factor in [her] termination6—‘is purely a question of fact . . . . [W]e must assume the
truth of the plaintiff's allegations.’ ” Clairmont, 632 F.3d at 1106 (quoting Eng, 552 F.3d
at 1071). Defendants claim that they played no role in Riley’s termination. (Doc. 266 at
12). Rather, they claim that YHS terminated Riley because of her alleged unwillingness
to disclaim YHS’s involvement in her activities, references to YHS in her speech, and
insubordinate conduct.

(Id. (citing DSOF ¶¶ 39, 41–58, 63–85, 105–109)).

Riley,

however, offers substantial evidence disputing these facts and the credibility of
Defendants’ witnesses. (See PCSOF ¶¶ 39, 41–58, 63–85, 105–109). Moreover, Riley
offers evidence calling into question whether, during the relevant time period, Defendants
communicated with YHS about Riley’s employment and whether YHS board members
may have felt pressured to terminate Riley’s employment. (See, e.g., PSOF ¶¶ 17–18,
21–25, 29, 33, 42; but see DCSOF ¶¶ 17–18, 21–25, 29, 33, 42). Further, the temporal
proximity between Riley’s speech and termination create an inference of retaliation.
Paige v. Coyner, 613 F.3d 273, 283 (6th Cir. 2010) (“Temporal proximity between the
protected conduct and the adverse action by the state actor alone may be significant
enough to constitute indirect evidence . . . to create an inference of retaliatory motive.”
(internal citation and quotation omitted)). Thus, Riley has presented sufficient evidence
to create a dispute of material fact whether her speech was a substantial motivating factor
in her termination.

24
d.

25
26

Defendants Failed to Give an Adequate Justification for
Treating Riley Differently Than Other Members of the
Public

The government bears the burden of showing that
under the Pickering balancing test, “the relevant government

27
28
6

Termination is clearly an adverse employment action.
- 12 -

1
2
3
4

entity had an adequate justification for treating the employee
differently from any other member of the general public.”
Garcetti, 547 U.S. at 418. “Although the Pickering balancing
inquiry is ultimately a legal question, like the private citizen
inquiry, its resolution often entails underlying factual
disputes.” Eng, 552 F.3d at 1071. As we have emphasized,
we must view all disputed facts in the light most favorable to
[Riley]. Huppert, 574 F.3d at 701.

5
6

Clairmont, 632 F.3d at 1106–07.

Adequate justification means that “government’s

7

legitimate administrative interests outweigh the employee’s First Amendment rights.”

8

Eng, 552 F.3d at 1071 (internal quotation omitted). “These interests include promoting

9

efficiency and integrity in the discharge of official duties and maintaining proper

10

discipline in the public service.” Clairmont, 632 F.3d at 1107 (citing Connick, 461 U.S.

11

at 150–51). To weigh the parties’ respective interests, the Court “examines disruption

12

resulting both from the act of speaking and from the content of the speech.”

13

Moreover, because Riley’s speech is examined in the context of independent contractors,

14

this test is “adjusted to weigh the government’s interests as contractor rather than as

15

employer.” Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 673 (1996).

Id.

16

Here, Defendants sole argument supporting adequate justification is that Riley’s

17

speech and conduct disrupted YHS. (Doc. 266 at 7, 12–13; see Doc. 287 at 2–4). If true,

18

then YHS may have had adequate justification in terminating Riley. Such an argument,

19

however, does nothing to evidence Defendants’ adequate justification for allegedly

20

applying pressure on YHS to terminate Riley for her speech. Because Defendants have

21

not argued that their interest in regulating Riley’s speech was sufficient to outweigh

22

Riley’s free speech interest, Defendants have waived this argument. See, e.g., Butler v.

23

Curry, 528 F.3d 624, 642 (9th Cir. 2008). Regardless, Defendants have neither alleged

24

nor offered any evidence to support a conclusion that pressuring YHS to terminate Riley

25

for her speech was “necessary for [the City of Prescott or Mayor Kuykendall’s office] to

26

operate efficiently and effectively.” Garcetti, 547 U.S. at 419 (citing Connick, 461 U.S. at

27

147). On the record before the Court at this stage in the case, Defendants have not met

28

their burden under the Pickering balancing test.

- 13 -

e.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Defendants Failed to Show That Riley Would Have Been
Terminated Even Absent Their Actions

“[I]f the government fails the Pickering balancing test, it alternatively bears the
burden of demonstrating that it ‘would have reached the same [adverse employment]
decision even in the absence of the [employee’s] protected conduct.’ ” Eng, 552 F.3d at
1072 (alteration in original) (quoting Thomas v. City of Beaverton, 379 F.3d 802, 808
(9th Cir. 2004)).
In other words, it may avoid liability by showing that the
employee’s protected speech was not a but-for cause of the
adverse employment action. See Mt. Healthy City School
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). This
question relates to, but is distinct from, the plaintiff’s burden
to show the protected conduct was a substantial or motivating
factor. It asks whether the “adverse employment action was
based on protected and unprotected activities,” and if the state
“would have taken the adverse action if the proper reason
alone had existed.”
Id. (quoting Knickerbocker v. City of Stockton, 81 F.3d 907, 911 (9th Cir. 1996)). This
inquiry is “purely a question of fact” and “we must therefore once again assume the truth
of the plaintiff's allegations.” Id.
Here, Defendants contend that YHS acted independently and terminated Riley’s
employment for insubordination and poor performance. (Doc. 266 at 7, 12–14 (citing
DSOF ¶¶ 39, 41–58, 63–85, 105–109)). Riley, however, disputes Defendants’ “facts”
and offers deposition testimony and emails from YHS board members suggesting that it
was only after Riley’s speech and Defendants’ subsequent economic pressure that YHS
decided to terminate Riley. (See PCSOF ¶¶ 30, 39, 41–58, 63–85, 105–109; PSOF
¶¶ 22–24, 33, 42, 48). For example, Riley submits an email from Boks (Director of
YHS) that indicates that on the morning of the protest Boks was aware that Defendants
may be so upset about Riley’s speech that the relationship between Defendants and YHS
could be affected. (PSOF ¶¶ 33 (citing Doc. 273, Ex. 29)). Additionally, the temporal
proximity between Riley’s speech, Defendants’ alleged actions, and YHS’ termination of
Riley creates an inference of retaliation. See Ray v. Henderson, 217 F.3d 1234, 1244 (9th
Cir. 2000) (a causal link may be inferred from proximity in time). Because “[i]mmunity
- 14 -

1

should be granted on this ground only if the state successfully alleges, without dispute by

2

the plaintiff,” that YHS would have taken the adverse action “even absent the questioned

3

speech,” the Court concludes that, when viewing the record evidence in the light most

4

favorable to Riley, Defendants have not met their burden on this issue. Clairmont, 632

5

F.3d at 1108 (citing Eng, 552 F.3d at 1072).

6

demonstrated that they are entitled to summary judgment on this alternative ground.

Therefore, Defendants have not

7

In sum, on the basis of the summary judgment record and when viewing the record

8

in the light most favorable to Riley, the Court holds that Riley has presented sufficient

9

evidence to establish a genuine dispute of material fact that her speech was

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

constitutionally protected and that Defendants violated her First Amendment rights.
3.

Riley Can Maintain a § 1983 Claim Against the City of Prescott
and Mayor Kuykendall, in His Official Capacity

Defendants argue that the City of Prescott and Mayor Kuykendall, in his official
capacity, cannot be liable under § 1983 because Mayor Kuykendall was not a final
policymaker with regard to the issues presented in this matter. (Doc. 266 at 7–9). “[A]
municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell v. Dept. of Soc. Servs. of the City of N.Y. et al., 436 U.S. 658, 691 (1978). Under
Monell, municipal liability may be based on any of three theories: (1) an expressly
adopted official policy; (2) a longstanding practice or custom; or (3) the decision of a
person with final policymaking authority. Lytle v. Carl, 382 F.3d 978, 982 (9th Cir.
2004). There is no allegation in this case that a Mayor Kuykendall or other City of
Prescott employees were acting pursuant to an express official policy. (See Doc. 279 at
12–16). Instead, Riley argues that she is entitled to relief under the second and third
Monell prongs. (Id.).
“[A] local government may be held liable under § 1983 when ‘the individual who
committed the constitutional tort was an official with final policy-making authority’ or
such an official ‘ratified a subordinate’s unconstitutional decision or action and the basis
for it.’ ” Clouthier v. County of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010)
(quoting Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)). “ ‘There must,
- 15 -

1

however, be evidence of a conscious, affirmative choice’ on the part of the authorized

2

policymaker.” Id. Moreover, “[i]t does not matter that the final policymaker may have

3

subjected only one person to only one constitutional violation.” Lytle, 382 F.3d at 983.

4

“A municipality can be liable for an isolated constitutional violation when the person

5

causing the violation has final policymaking authority.” Id. (quoting Christie v. Iopa,

6

176 F.3d 1231, 1235 (9th Cir. 1999)).

7

Identifying a policy-making official is a question of law for the Court to decide by

8

reference to state law, not one of fact to be submitted to the jury. Jett v. Dallas Indep.

9

Sch. Dist., 491 U.S. 701, 737 (1989); see Gillette, 979 F.2d at 1346 (“Whether a

10

particular official has final policy-making authority is a question of state law.”) (citing

11

Jett, 491 U.S. at 737). Although the first step in identifying a final policymaker is

12

examination of state law, “[d]epending on the circumstances . . . we may also look to the

13

way a local government entity operates in practice.” Lytle, 382 F.3d at 982–83 (citing

14

Jett, 491 U.S. at 737) (trial judge must identify official policymakers based on “state and

15

local positive law, as well as custom or usage having the force of law”) (citation and

16

quotation marks omitted)).

17

policymaking authority, [the court] ask[s] whether he or she has authority ‘in a particular

18

area or on a particular issue.’ ” Id. at 983 (emphasis in original) (quoting McMillian v.

19

Monroe County, 520 U.S. 781, 785 (1997)).

“When determining whether an individual has final

20

Here, Defendants argue that Mayor Kuykendall “was not a final policymaker on

21

the issue of municipal contracts, or the administration or termination of those contracts,

22

nor was he a final policy-maker [sic] with regard to any other issues presented in this

23

matter.” Doc. 266 at 9 (citing DSOF ¶¶ 1–6); see id. at 7–9; Doc. 287 at 8–11. Although

24

Riley disputes this (Doc. 279 at 12–14), Defendants are correct insofar as Mayor

25

Kuykendall clearly did not have the authority to unilaterally enter into or cancel the YHS

26

contract. Article VIII of the City of Prescott Charter codifies Prescott’s ability to enter

27

into municipal contracts and specifies that “[t]he city council shall prescribe by ordinance

28

the manner and method of purchases and entering into contracts, the manner and method

- 16 -

1

of executing change orders, and shall set forth therein the purchases and contract amounts

2

which shall require approval of the city council.” City of Prescott Charter, Art. VIII § 3,

3

PCSOF at Ex. 46. The Prescott City Code further provides that the city council must

4

approve municipal contracts, like the YHS contract, that are valued at over $10,000. See

5

Prescott, Ariz. Code §§ 1-27-11(C)–(D), 1-27-16 (2013).

6

contract, itself, specified that “the Prescott City Council shall determine whether to renew

7

the contract” and termination was at the discretion of “the City.”7 (Animal Sheltering

8

Service Agreement, §§ 4(A)–(B), Doc. 267-1 at Ex. A). Thus, with regard to the YHS

9

contract, the Prescott City Council was the final policymaker—not Mayor Kuykendall

10

Furthermore, the YHS

unilaterally as mayor.

11

Defendants are incorrect about the status of Mayor Kuykendall not as a final

12

policymaker for municipal contracts, however, insofar as Mayor Kuykendall was

13

indisputably a voting member of the Prescott City Council (DSOF ¶ 2; PCSOF ¶ 2).

14

Under Arizona state law, “[t]he mayor of the common council shall be the chief

15

executive officer of the town, and shall perform such duties as may be prescribed by law

16

and ordinance.” A.R.S. § 9-236. The City of Prescott Charter defines the mayor’s duties:

17

[t]he mayor shall be the chairman of the council and preside
over its deliberations. He may make and second motions and
shall have a voice and vote in all proceedings. He shall be a
chief executive of the city government for all purposes and
. . . shall have executive by no regular administrative duties.

18
19
20
21
22

City of Prescott Charter, Art. II § 6, PCSOF at Ex. 46.8
Of course, as only one of seven members of the Prescott City Council, Mayor
Kuykendall could not, in his official capacity as chairman of the Prescott City Council,

23
24
7

25
26
27
28

Although “the City” is not as unambiguous as specifying “the Prescott City
Council,” the Court interprets the term to refer to the Prescott City Council and not to the
mayor of Prescott. This is because the YHS contract never mentions the mayor of
Prescott (although the mayor did sign the contract on behalf of the City) and only ever
specifies the Prescott City Council. (Animal Sheltering Service Agreement, Doc. 267-1
at Ex. A).
8

Additionally, “[a]ll contracts shall be . . . executed in the name of the City of
Prescott by the mayor.” City of Prescott Charter, Art. VIII § 1, PCSOF at Ex. 46.
- 17 -

1

unilaterally approve renewal of or terminate the YHS contract. Here, however, the

2

alleged constitutional violation is not direct action by the Prescott City Council. Rather,

3

Riley alleges indirect action: Mayor Kuykendall’s threat of later direct action by the

4

Prescott City Council. The Ninth Circuit Court of Appeals has held that § 1983 liability

5

can accrue from indirect actions, not only direct actions. Clairmont, 632 F.3d at 1100

6

(“First Amendment protection does not depend on whether the governmental action is

7

direct or indirect. . . . the government . . . may not threaten to exert economic pressure on

8

a private employer in order to produce a result which [it] could not command directly.”).

9

Therefore, it stands to reason that indirect actions by a member of the city council, not

10

only direct actions by the full city council, impute liability onto the municipality.

11

The alternative to holding the City of Prescott liable for credible threats of adverse

12

policymaking levied by members of the City Council is to hold that the City cannot be

13

liable unless the City Council, as a governing body, officially ratifies the threat through

14

direct action. Such a holding would absurdly give councilmembers carte blanche to

15

violate constitutional rights through the indirect action of threatening later adverse direct

16

action by the City Council. Essentially, a party threatened by a councilmember would

17

have only two choices: (1) acquiesce to the threat—an indirect action—and render the

18

City unaccountable because there was no need to follow through with direct City Council

19

action; or (2) resist the threat and hope that the councilmember was bluffing and the City

20

Council takes no adverse direct action. Either way, unless and until the City Council

21

actually takes direct final policymaking action ratifying the threat, the City remains

22

unaccountable for the earlier threat (an indirect action) by its councilmember. That

23

cannot be the law because if it were, then the threat, itself clearly unconstitutional under

24

§ 1983, would not be a redressable harm. See Mi Pueblo San Jose, Inc. v. City of

25

Oakland, No. C-06-4094 VRW, 2006 WL 2850016, at *4 (N. Dist. Cal. Oct. 4, 2006)

26

(finding that where a municipality argued that multiple city officials were involved in

27

making a final policymaking decision, the law does not allow a municipality to “avoid

28

liability by obscuring its organizational structure and suggesting that the buck stops

- 18 -

1

nowhere”). Such an alternative holding is no alternative, after all. Consequently, Mayor

2

Kuykendall should be considered a final policymaker in the context of his threat of

3

economic harm to YHS via not renewing or canceling its municipal contract. 9

4

But even if Mayor Kuykendall is not a final policymaker in the instant context, the

5

Court notes that Riley advances an alternative argument to justify attributing Monell

6

liability to the City of Prescott. Riley argues that “there is both direct and circumstantial

7

evidence that several City Council members also interfered with her employment[,] . . .

8

expressed dismay and were upset with [Riley’s] participation in the protest.” (Doc. 279

9

at 14 (citing PSOF ¶¶ 18, 33, 36–37, 44–45 (indicating that it may have been

10

communicated to YHS that multiple councilmembers expressed displeasure with Riley’s

11

speech and YHS); but see DCSOF ¶¶ 18, 33, 36–37, 44–45)). Although scant, Riley’s

12

proffered evidence does raise a genuine dispute of material fact over whether a majority

13

of the City Council exerted indirect economic pressure on YHS to retaliate against Riley.

14

A majority of the City Council is capable of carrying out its threats and therefore surely

15

constitutes a final policymaker in this context.

16

In sum, in this case, Mayor Kuykendall was a final policymaker because, as a

17

member of the Prescott City Council, he had a portion of the final policymaking authority

18

of the City of Prescott for purposes of the YHS contract. Alternatively, in the context of

19

a threat of later direct City Council action, a majority of the members of the Prescott City

20

Council constitutes a final policymaker for purposes of Monell liability. Accordingly,

21

Riley may maintain her § 1983 claim against the City of Prescott and Mayor Kuykendall,

22
23
9

24
25
26
27
28

The Court notes that Mayor Kuykendall’s dual status as chief executive of the
City of Prescott and chairman of the Prescott City Council undoubtedly provided him
significant influence over the Prescott City Council and its policymaking. This obvious
influence would have provided significant credibility to Mayor Kuykendall’s threat of
economic pressure if YHS did not retaliate against Riley. Moreover, because of Mayor
Kuykendall’s elevated stature on the Prescott City Council, YHS could have reasonably
believed that Mayor Kuykendall’s threats represented the position of other
councilmembers and the City Council, as a body. (See PSOF ¶¶ 18, 33, 36–37, 44–45
(indicating that it may have been communicated to YHS that other councilmembers
expressed displeasure with Riley’s speech and YHS); but see DCSOF ¶¶ 18, 33, 36–37,
44–45).
- 19 -

1

in his official capacity. 10

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

4.

Mayor Kuykendall, in His Personal Capacity, is Not Entitled to
Qualified Immunity

Defendants argue that Mayor Kuykendall, in his personal capacity, is entitled to
qualified immunity because he took no unconstitutional action and, even if he did,
Riley’s constitutional right was not clearly established at the time of the violation. (Doc.
266 at 9–14; Doc. 287 at 4–8). A defendant in a § 1983 action is entitled to qualified
immunity from damages for civil liability if his or her conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). There is a two-step sequence
for resolving a qualified immunity claim: the “constitutional inquiry” and the “qualified
immunity inquiry.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The “constitutional
inquiry” asks whether, when taken in the light most favorable to the non-moving party,
the facts alleged show that the official’s conduct violated a constitutional right. Id. If so,
a court turns to the “qualified immunity inquiry” and asks if the right was clearly
established at the relevant time. Id. at 201–02. This second inquiry “must be undertaken
in light of the specific context of the case, not as a broad general proposition.” Id. at 201.
Courts are “permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236
(2009).
First, regarding the “constitutional inquiry,” after performing the 5-step Clairmont
inquiry above, the Court finds that Riley has presented sufficient evidence to establish a
genuine dispute of material fact that her speech was constitutionally protected and that
Defendants violated her First Amendment rights.

Second, regarding the “qualified

immunity inquiry,” “it is well settled that the state may not abuse its position as employer

26
27
28

10

In light of the Court’s conclusion that Riley’s rights were allegedly violated by a
“final policymaker,” the Court need not address Riley’s alternative ground for municipal
liability under Monell (that the City of Prescott’s retaliation against Riley was pursuant to
a longstanding practice or custom (Doc. 279 at 15–16)).
- 20 -

1

to stifle ‘the First Amendment rights [its employees] would otherwise enjoy as citizens to

2

comment on matters of public interest.’ ” Eng, 552 F.3d at 1070 (quoting Pickering, 391

3

U.S. at 568). Additionally, the Court previously found that Riley’s constitutional right to

4

engage in free speech free of government interference was clearly established when she

5

was terminated from YHS. (Doc. 38 at 7 (citing Clairmont, 632 F.3d at 1100) (“Where

6

the government may not prohibit certain speech, it also may not threaten to exert

7

economic pressure on a private employer in order to produce a result which [it] could not

8

command directly.”)). Accordingly, Mayor Kuykendall, in his personal capacity, is not

9

entitled to qualified immunity.

10

In sum, (1) Riley can maintain her § 1983 claim; (2) there is a dispute of material

11

fact whether Defendants took unconstitutional action; (3) the City of Prescott and Mayor

12

Kuykendall, in his official capacity, are proper defendants; and (4) Mayor Kuykendall, in

13

his private capacity, is not entitled to qualified immunity. Because Defendant has failed

14

to demonstrate that there is not a genuine dispute of material fact, Defendant is not

15

entitled to summary judgment on Riley’s § 1983 claim. Accordingly, the Court denies

16

Defendants’ Motion for Summary Judgment (Doc. 266) with respect to Count I.

17

C.

18

Riley alleges in Count III of her Complaint (Doc. 1 at 19–20, ¶¶ 110–19) that

19

Mayor Kuykendall intentionally interfered with Riley’s employment relationship with

20

YHS by threatening to cancel or not renew the YHS contract because of Riley’s

21

involvement with the PCAB and her participation in the public demonstration against him

22

and other city officials. Riley alleges that this threat ultimately led to her termination

23

from YHS. Defendants (Doc. 266 at 14–16) and Riley (Doc. 271 at 7–12) have each

24

moved for summary judgment on Count III.

25

Count III: Tortious Interference with Employment Relationship

1.

Legal Standard

26

“Tort liability may be imposed upon a defendant who intentionally and improperly

27

interferes with the plaintiff’s rights under a contract with another if the interference

28

causes the plaintiff to lose a right under the contract.” Snow v. Western Sav. & Loan

- 21 -

1

Ass’n, 730 P.2d 204, 211 (Ariz. 1986) (internal citations omitted). “To plead a prima

2

facie case of intentional interference with contract, the plaintiff must allege: (1) the

3

existence of a valid contractual relationship; (2) knowledge of the relationship on the part

4

of the interferor; (3) intentional interference inducing or causing a breach; (4) resultant

5

damage to the party whose relationship has been disrupted; and (5) that the defendant

6

acted improperly.” Id. (internal quotations and citations omitted).

7
8

2.

Analysis
a.

Defendants’ Motion for Summary Judgment

9

In their motion, Defendants do not mention elements one, two, and four (Doc. 266

10

at 14–16), and therefore concede at least that those elements are in dispute. Defendants,

11

however, argue that Riley cannot meet her burden on elements three and five by

12

claiming, without specificity, that “there are no facts showing that the City of Prescott

13

Defendants engaged in any actions that induced or caused a breach of Riley’s

14

employment contract, or that the City of Prescott Defendants engaged in any improper

15

action that caused Riley’s job termination.” (Doc. 266 at 15) (emphasis in original).

16

Defendants are incorrect on both elements.

17

Regarding element three, first, as discussed above, Riley has demonstrated there is

18

a genuine dispute of material fact whether Mayor Kuykendall threatened economic harm

19

to YHS if YHS did not terminate Riley’s employment. Supra, II.B.2. Riley also offers

20

evidence calling into question whether, during the relevant time period, Defendants

21

communicated with YHS about Riley’s employment and whether YHS board members

22

may have felt pressured to terminate Riley’s employment. (See, e.g., PSOF ¶¶ 17–18,

23

21–25, 29, 33, 42; but see DCSOF ¶¶ 17–18, 21–25, 29, 33, 42). Lastly, Riley offers

24

deposition testimony and emails from YHS board members suggesting that it was only

25

after Riley’s speech and Defendants’ subsequent economic pressure that YHS decided to

26

terminate Riley. (See PCSOF ¶¶ 30, 39, 41–58, 63–85, 105–109; PSOF ¶¶ 22–24, 33, 42,

27

48). Consequently, element three is in genuine dispute.

28

Regarding element five, whether Defendants’ actions were improper, the Supreme

- 22 -

1

Court of Arizona has opined that “the ‘improper’ element . . . ‘generally is determined by

2

weighing the social importance of the interest the defendant seeks to advance against the

3

interest invaded.’ ” Safeway Ins. Co., Inc. v. Guerrero, 106 P.3d 1020, 1026, ¶ 21 (2005)

4

(quoting Snow v. Western Sav. & Loan Ass’n, 730 P.2d 204, 212 (Ariz. 1986)). Here,

5

Defendants’ alleged actions were clearly improper. As discussed above, the Court finds

6

that Riley has demonstrated that there is a genuine dispute of material fact whether

7

Mayor Kuykendall threatened economic harm to YHS if YHS did not terminate Riley’s

8

employment. Supra, II.B.2. Riley has also demonstrated a genuine issue of material fact

9

whether such threat was unconstitutional. Id. Because an unconstitutional action is

10

inherently improper, element five is in genuine dispute.

11

Because Defendant has failed to demonstrate that there is not a genuine dispute of

12

material fact, Defendant is not entitled to summary judgment on Riley’s tortious

13

interference claim.11 Accordingly, the Court denies Defendants’ Motion for Summary

14

Judgment (Doc. 266) with respect to Count III.
b.

15

Riley’s Motion for Partial Summary Judgment

16

In her motion, Riley argues that there is no genuine dispute of material fact as to

17

elements one (Riley was employed by YHS), two (Defendants were aware of Riley’s

18

employment), and four (Riley suffered damages caused by the termination of her

19

employment). (Doc. 271 at 8).

20

matter of law that there is no genuine dispute as to element [three] (intentional

21

interference) and [five] (improper conduct), based on undisputed facts as further

22

supported by Defendants’ spoliation of evidence.” (Id.).

23

Riley also argues that “[t]he Court should find as a

First, the Court notes that Defendants have offered copious evidence disputing the

24
25
26
27
28

11

The Court notes that Defendants also argue that the City of Prescott is entitled to
summary judgment because Riley has no evidence that the alleged tortious conduct was
committed by an employee of the City of Prescott in the course and scope of his
employment. (Doc. 266 at 16–17). Here, it is undisputed that Mayor Kuykendall and the
councilmembers’ scope of employment includes the negotiation, renewal, and
cancelation of municipal contracts. Thus, the pressure allegedly applied by Mayor
Kuykendall and other councilmembers on YHS concerning the municipal contract is
within the scope of the Mayor and the councilmembers’ employment.
- 23 -

1

factual basis of Riley’s claim. Specifically, Defendants have demonstrated a reasonable

2

dispute of material fact over whether Mayor Kuykendall threatened economic harm to

3

YHS if YHS did not terminate Riley’s employment. It is undisputed that, at deposition,

4

Mayor Kuykendall, other councilmembers, and various YHS board members testified

5

that Defendants were not involved in the termination of Riley’s employment by YHS.

6

(DSOF ¶¶ 120–70; see PCSOF ¶¶ 120–70 (admitting that deponents testified as noted,

7

but disputing the truthfulness of the statements)). Although Riley presents abundant

8

evidence challenging the credibility of the deponents testimony (see, e.g., PCSOF

9

¶¶ 120–70; PSOF ¶¶ 17–18, 21–25, 29, 33, 42), credibility determinations are within the

10
11
12
13
14

province of the jury, not the Court at the summary judgment stage. Harris v. Itzhaki, 183
F.3d 1043, 1051 (9th Cir. 1999) (“Issues of credibility, including questions of intent,
should be left to the jury.”) (internal citations omitted). When viewed in the light most
favorable to the non-moving party (here, Defendants), there is a genuine dispute of
material fact over whether Defendants acted intentionally or improperly.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Second, Riley’s reliance on sanctions for Defendants’ spoliation of evidence is
unwarranted and does not entitle Riley to summary judgment on Count III. As explained
below, infra III.A.3.d., Riley is entitled to an adverse inference jury instruction, not the
factual findings she seeks. Unlike a factual finding, at the summary judgment stage an
adverse inference jury instruction does not resolve the genuine factual disputes presented
here. Accordingly, the Court denies Riley’s Motion for Summary Judgment (Doc. 271)
with respect to Count III.
III.

CROSS-MOTIONS FOR DISCOVERY SANCTIONS
Riley’s Motion for Partial Summary Judgment includes a Motion for Discovery

Sanctions. (Doc. 271 at 12–21). Defendants include in their Response a Cross-Motion
for Discovery Sanctions. (Doc. 285 at 23–25).
A.

Riley’s Motion

Riley argues (Doc. 271 at 12–21) that she is entitled to claim-dispositive sanctions
due to Mayor Kuykendall’s alleged spoliation of various email evidence.
- 24 -

1
2
3
4

Defendants must be sanctioned for their willful misconduct.
This Court should, as a sanction, find that the spoliated
evidence would have established (1) Defendants intentionally
interfered with Riley’s employment relationship causing her
termination, and (2) Defendants’ conduct was improper.
Upon making this determination, the Court should grant
summary judgment in [Riley’s] favor on her tortious
interference claim.

5
6
7
8
9

(Doc. 271 at 19).
1.

Evidence of Spoliation

Riley argues that the following facts show that Mayor Kuykendall has destroyed
or failed to preserve email evidence relevant to this litigation:

10

 Although Riley has made multiple requests for production of emails between

11

Defendants and YHS, and specifically between Mayor Kuykendall and Goodman,

12

Defendants have not produced such emails. (Doc. 271 at 6, 16; PSOF ¶¶ 62, 65,

13

67, 74, 76–77).

14

Goodman communicated by email.

15

position [is] that he does not use email”)).

Moreover, Mayor Kuykendall explicitly denied that he and
(PSOF ¶ 84; DSOF ¶ 84 (“the Mayor’s

16

 Nonetheless, Riley discovered numerous emails relevant to this litigation where

17

either Mayor Kuykendall or his assistant were senders or recipients of the emails.

18

These emails were discovered from third-parties, YHS, Goodman, and Google,

19

Inc. (Doc. 271 at 6; PSOF ¶¶ 67, 74–83).

20

 On March 1, 2011, Riley served the City of Prescott and Mayor Kuykendall with

21

the Notice of Claim. (PSOF ¶ 56; see DCSOF ¶ 56 (acknowledging that Mayor

22

Kuykendall received the Notice of Claim)).

23

 On May 18, 2011, Riley served a Public Records request on the City of Prescott

24

requesting, among other things, emails between Mayor Kuykendall and YHS,

25

Boks, or Goodman. (PSOF ¶ 62; DCSOF ¶ 62; DSOF at Ex. 53).

26

o Mayor Kuykendall had the responsibility to locate and produce records

27

responsive to a public records request, although the IT Department was

28

available to assist with the process. (PSOF ¶ 63; DCSOF ¶ 63).

- 25 -

1

 On August 15, 2011, Riley sent Defendants a Notice of Request to Preserve

2

Documents and Electronically Stored Information. (PSOF ¶ 65; DCSOF ¶ 65).

3

 On July 16, 2012, Riley discovered twenty-four emails potentially relevant to this

4

litigation through Google, Inc’s search (pursuant to subpoena) of Mayor

5

Kuykendall’s private email address.

6

“from,” and “date” fields of the email, not the subject line or body. (Doc. 171 at

7

16; PSOF ¶ 74).

This discovery revealed only the “to,”

8

o Riley had previously requested these emails on May 18, 2011 and May 15,

9

2012. Riley again requested Defendant produce these emails on July 30,

10

2012. (PSOF ¶ 76; DCSOF ¶ 76). Defendants did not search Mayor

11

Kuykendall’s home computer and personal email account until August 16,

12

2012. (PSOF ¶ 78). Defendants produced none of the twenty-four emails

13

from the Google list. (PSOF ¶ 77; DCSOF ¶ 77).

14

 On or about October 30, 2012, five emails were discovered through third-party

15

Goodman (pursuant to a subpoena). Three of these emails were from Goodman to

16

Mayor Kuykendall and two of these emails were from Mayor Kuykendall’s

17

assistant to Goodman. This discovery revealed the full text of all five emails.

18

(PSOF ¶ 67; DCSOF ¶ 67). Defendants had not previously produced these emails.

19

 On March 19, 2013, over Defendants’ objections, Riley obtained a court order

20

directing Google, Inc. to produce copies of each of the twenty-four emails

21

previously identified in Mayor Kuykendall’s private Gmail account. On or about

22

March 25, 2013, Google, Inc. searched its servers but “did not identify or locate

23

among its business records” any of the twenty-four emails. (PSOF ¶¶ 79–80;

24

DCSOF ¶ 79). Google’s Custodian of Records produced a declaration confirming

25

that, on July 16, 2012, the twenty-four emails existed in Mayor Kuykendall’s

26

Gmail account, but that “[r]ecords regarding whether, when, how or by whom any

27

emails that may have existed were deleted are not reasonably accessible to

28

Google.” (PSOF at Ex. 51; DCSOF ¶ 80 (acknowledging the contents of the

- 26 -

1

declaration, but objecting that the declaration “leaves open the possibility that an

2

employee of Google may have taken some action, either in July 2012 or March

3

2013[,] that resulted in the deletion of emails from the Mayor’s Google-

4

maintained e-mail account”)). Defendants have not produced any of these twenty-

5

four emails.

6

In Response, Defendants deny destroying evidence relevant to this case during the

7

period when Defendants were obligated to preserve evidence. Specifically, Defendants

8

allege that Mayor Kuykendall is neither proficient in nor a regular user of email. (Doc.

9

285 at 7). With regard to Mayor Kuykendall’s city-assigned email account, Mayor

10

Kuykendall alleges that it is his assistant, not himself, who accesses and uses his city-

11

email account. (DCSOF ¶¶ 75, 99). Mayor Kuykendall also claims that due to City of

12

Prescott IT limitations, his city-emails are not archived and his assistant regularly deletes

13

emails after approximately two weeks. (DCSOF ¶¶ 39, 58–60, 69–71, 114–17). Mayor

14

Kuykendall further explains that the City’s email server only stores user-deleted email for

15

30 days. (DCSOF ¶¶ 61–64). Mayor Kuykendall argues that consequently, any of

16

Mayor Kuykendall’s city-emails relevant to this litigation would have been routinely

17

deleted and irretrievable prior to receipt of Riley’s Notice of Claim on March 1, 2011.12

18

With regard to Mayor Kuykendall’s private Gmail account, Mayor Kuykendall

19

alleges that it is his wife, not himself, who accesses and uses his Gmail account.

20

(DCSOF ¶¶ 81–85). Mayor Kuykendall also claims that his wife uses his Gmail account

21

to correspond with his assistant and campaign manager. (DCSOF ¶¶ 83–85, 108–10).

22

Mayor Kuykendall further claims that he has insufficient technical knowledge to delete

23

emails from his personal account, and that he is not aware of anyone taking affirmative

24

steps to delete emails from his Gmail account during the pendency of the litigation.

25

(DCSOF ¶¶ 111, 113).

26

declaration is insufficient to justify sanctions because it does not specify the source of the

Additionally, Mayor Kuykendall argues that the Google

27
28

12

Riley’s YHS employment was terminated on November 12, 2010, over three
months prior to the Notice of Claim.
- 27 -

1

emails’ deletion, whether a technological glitch could be to blame, or whether a Google

2

employee could be responsible.13 (Doc. 285 at 10).

3

Aside from arguing that no emails were destroyed during the period when

4

Defendants were obligated to preserve them, Defendants argue that the alleged spoliation

5

does not hamper Riley’s ability to prosecute her case because she had access to

6

Goodman’s email, and therefore had access to any relevant emails between Mayor

7

Kuykendall and Goodman. 14 (Doc. 285 at 10–11). Consequently, Defendants argue that

8

their actions warrant no sanctions of any kind. (Id. at 15–18).
2.

9

Legal Standard

10

The Court has discretion under its inherent powers to sanction a party who causes

11

the spoliation of evidence. See Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir.

12

2006). This discretion is broad and can range from minor sanctions, such as the awarding

13

of attorneys’ fees, Leon, 464 F.3d at 961, to more serious sanctions, such as dismissal of

14

claims, id. at 958, or instructing the jury that it may draw an adverse inference, In re

15

Oracle Corp. Sec. Litig., 627 F.3d 376, 386–87 (9th Cir. 2010). Sanctions under these

16

“inherent powers must be exercised with restraint” and should be appropriate to the

17

conduct that triggered the sanction. Chambers v. NASCO, Inc., 501 U.S. 32, 44–45

18

(1991).

19

Destruction of evidence or the failure to preserve property for another’s use as

20

evidence in pending litigation constitutes spoliation.

See United States v. Kitsap

21

Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002). Specifically, failure to “preserve

22

electronic or other records, once the duty to do so has been triggered, raises the issue of

23

spoliation of evidence and its consequences.” Surowiec v. Capital Title Agency, Inc., 790

24
13

25
26
27
28

Mayor Kuykendall also implies that because an email could linger on Google’s
servers for up to 60 days beyond the date of user deletion, the twenty-four emails could
have been deleted up to 60 days prior to Google’s July 16, 2012 response to Riley’s
subpoena. (Doc. 285 at 10). Considering that March 1, 2011 was over 400 days prior to
July 16, 2012, it is unclear how this fact, even if true, could possibly excuse the
disappearance of the twenty-four emails.
14

Riley responds that the five Goodman emails are only a fraction of the emails
Mayor Kuykendall destroyed.
- 28 -

1

F.Supp.2d. 997, 1005 (D. Ariz. 2011) (quoting Thompson v. U.S. Dep’t. of Hous. &

2

Urban Dev., 219 F.R.D. 93, 100 (D. Md. 2003)); see also Leon, 464 F.3d at 959 (noting

3

willful destruction of electronic files constituted spoliation).

4

“A party seeking sanctions for spoliation of evidence must prove the following

5

elements: (1) the party having control over the evidence had an obligation to preserve it

6

when it was destroyed or altered; (2) the destruction or loss was accompanied by a

7

‘culpable state of mind;’ and (3) the evidence that was destroyed or altered was ‘relevant’

8

to the claims or defenses of the party that sought the discovery of the spoliated

9

evidence[.]” Surowiec, 790 F.Supp.2d at 1005 (quoting Goodman v. Praxair Servs., Inc.,

10

632 F.Supp.2d 494, 509 (D. Md. 2009)). The Court will now examine each of these

11

elements to determine if Riley has sufficiently established that Mayor Kuykendall

12

engaged in conduct that led to the spoliation of evidence and warrants sanctions.

13
14

3.

Analysis
a.

Obligation to Preserve

15

“It is well established that the duty to preserve arises when a party knows or

16

should know that certain evidence is relevant to pending or future litigation.” Surowiec,

17

790 F.Supp.2d at 1005 (internal citation and quotation omitted). “Stated differently, the

18

duty to preserve is triggered not only during litigation, but also extends to the period

19

before litigation when a party should reasonably know that evidence may be relevant to

20

anticipated litigation.”

21

Kuykendall’s duty to preserve the contents of his city-assigned email account and private

22

Gmail account arose when he received Riley’s Notice of Claim on March 1, 2011. Riley,

23

however, argues that Defendants’ obligation to preserve evidence in both email accounts

24

arose earlier. The Court will address each account in turn.

25

1.

26
27
28

Id. (internal citations omitted).

At the very latest, Mayor

Mayor Kuykendall and City Employee’s CityAssigned Email Addresses

Defendants argue that no spoliation of emails from Mayor Kuykendall’s cityassigned email account occurred because any relevant emails would have been routinely
deleted prior to March 1, 2011, the date when Defendants argue an obligation to preserve
- 29 -

1

evidence arose.

Riley, however, argues that Defendants had a preexisting duty to

2

preserve relevant emails because: (1) Mayor Kuykendall and City employees are public

3

officers subject to state public records laws and regulations; and (2) the City had a

4

contractual business relationship with YHS. Specifically, Riley argues (Doc. 271 at 13–

5

15) that applicable Arizona public records laws, A.R.S. §§ 39-121, et seq., obligated

6

Defendants to preserve all emails related to municipal contracts (which would include

7

emails related to YHS and, by extension Riley, during the entirety of all events alleged by

8

Riley). Riley appears to argue that because Arizona’s public records laws are designed,

9

in part, to preserve documents of legal significance,15 Defendants either knew or should

10

have known that emails related to a municipal contract hold legal significance that

11

obligate their preservation.

12

The Court notes that although Defendants have responded to most of Riley’s

13

spoliation argument in their Response, they ignore this argument.16 (Doc. 285 at 6–9,

14

13–14).

15

Defendants to admit that under Arizona public records laws, Defendants became

16

obligated to preserve emails between city employees and YHS at some point prior to

17

October 26, 2010, the date Riley first publicized the protest. From the facts presented at

18

this stage of the hearing, it is not in dispute that sometime after October 26, 2010,

19

multiple emails potentially relevant to this litigation were deleted from Mayor

20

Kuykendall’s city-assigned email account.

21

Kuykendall’s city-assigned email account, Riley has made a showing that spoliation

22

occurred after Defendants’ duty to preserve evidence had arisen.

Consequently, for the purposes of this motion, the Court will consider

Accordingly, with regard to Mayor

23
24
25
26
27

15

“Records shall not be destroyed or otherwise disposed of by any agency of this
state unless it is determined by the state library that the record has no further
administrative, legal, fiscal, research or historical value.” A.R.S. § 41-151.15(B)
(emphasis added).
16

28

Defendants argue (Doc. 285 at 13–14) that Mayor Kuykendall merely followed
the established City of Prescott IT policy between October 26 and March 1, 2011. This
argument goes to culpability, not Defendants’ underlying obligation to preserve evidence.
- 30 -

2.

1

Mayor Kuykendall’s Private Gmail Account

2

At the very latest, Mayor Kuykendall’s duty to preserve the contents of his

3

private Gmail account arose when he received Riley’s Notice of Claim on March 1, 2011.

4

From the facts presented, it appears that Mayor Kuykendall’s private Gmail account

5

contained emails relevant to this litigation on March 1, 2011. Twenty-four identified

6

emails appear to have been deleted from Mayor Kuykendall’s personnel Gmail account

7

no earlier than mid-May, 2012, more than one year after Mayor Kuykendall knew of his

8

obligation to preserve evidence.

9

Mayor Kuykendall never produced these emails and the emails were deleted from his

Nonetheless, despite multiple requests from Riley,

10

Gmail account, rendering them irretrievable.

11

Kuykendall’s private Gmail account, Riley has made a showing that at least some of the

12

spoliation occurred after Defendants’ duty to preserve had arisen.
b.

13

Accordingly, with regard to Mayor

Culpable State of Mind

14

“Courts have not been uniform in defining the level of culpability—be it

15

negligence, gross negligence, willfulness, or bad faith—that is required before sanctions

16

are appropriate.”

17

omitted). “Nor is there consensus as to how the level of culpability is to be determined,

18

or what prejudice, if any, may be presumed from culpable conduct.” Id. at 1006–07.

19

However, it is clear that “[a]n allegedly spoliating party’s culpability must be determined

20

case-by-case.” Id. at 1007.

21
22
23
24
25
26
27
28

Surowiec, 790 F.Supp.2d at 1006 (internal quotation and citation

1.

Mayor Kuykendall and City Employee’s CityAssigned Email Addresses

In this case, Defendants argue that “there is no evidence that City emails were
deleted except in the exercise of normal city practice; that does not constitute destruction
with any culpable state of mind.” (Doc. 285 at 14). From the facts presented at this stage
of the proceedings, it appears that through the combination of Mayor Kuykendall’s
personal email retention policy and the IT policies of the City of Prescott, emails
potentially relevant to this litigation that were sent to and from Mayor Kuykendall’s cityassigned email address would, under normal circumstances, not be preserved for more
- 31 -

1

than approximately 45 days.17 Thus, any email relevant to this litigation created before

2

approximately mid-January, 2011,18 would have been destroyed prior to March 1, 2011.

3

Defendants have produced emails retrieved from city-assigned email addresses that post-

4

date March 1, 2011, and Riley has not made a factual showing that Defendants deleted

5

emails from city-assigned addresses after March 1, 2011.

6

Nonetheless, Defendants have not attempted to explain why the “normal city

7

practices” exercised here fail to follow Arizona public record requirements. Moreover,

8

Defendants have not satisfactorily explained why they failed to preserve emails between

9

city employees and board members of an entity (YHS) that has a contract with the City.

10

Defendants claim that if any relevant emails had existed, then Mayor Kuykendall’s

11

assistant would have classified them as “non-city business” and deleted them

12

accordingly.

13

emails is, at best, grossly negligent and, at worst, willful. Accordingly, the Court finds

14

that the totality of the facts presented show that Defendants deleted emails related to this

15

lawsuit, and did so with sufficient culpability to warrant sanctions.

Such non-compliance with Arizona state law and misclassification of

2.

16

Mayor Kuykendall’s Private Gmail Account

17

In this case, Defendants argue that “there is no evidence that any City of Prescott

18

Defendant deleted any ‘evidence’ from the Mayor’s Gmail account” and that “the Google

19

Declaration leaves room for the possibility that the emails are missing because of some

20

issue on Google’s end.” (Doc. 285 at 14–15). Here, Defendants’ explanations for their

21

failure to preserve evidence are not reasonable. From the facts presented at this stage of

22

the proceedings, it is evident that emails related to this lawsuit remained in Mayor

23

Kuykendall’s Gmail account over one year after Mayor Kuykendall received Riley’s

24

Notice of Claim.

Despite numerous requests for production, Mayor Kuykendall

25
17

26
27
28

Defendants allege that any emails related to Riley would have been classified as
“non-city business” by Mayor Kuykendall’s assistant, Mayor Kuykendall’s assistant
deletes such emails approximately every two weeks, and the City’s back-up server only
retains deleted emails for 30 days. (DCSOF ¶¶ 39, 58–64, 69–71, 114–17).
18

Mid-January is approximately 45 days before March 1, 2011.
terminated on November 12, 2010.
- 32 -

Riley was

1

produced nothing from his Gmail account. After a subpoena to Google revealed that

2

emails existed, Mayor Kuykendall continued to refuse production and the emails were

3

deleted. Even if Defendants’ argument that Google deleted the emails was factually

4

accurate, it does not explain Mayor Kuykendall’s refusal to produce the emails during the

5

year post-Notice of Claim that the emails indisputably existed. Accordingly, the Court

6

finds that Mayor Kuykendall acted willfully and in bad faith, and, thus, with a culpable

7

state of mind.

8

c.

Relevance to the Claims

9

Riley has shown that the evidence destroyed was likely relevant to her claims.

10

Riley discovered multiple emails in Goodman’s email account that were sent to Mayor

11

Kuykendall or his assistant.

12

discussing Riley and YHS with Goodman both before and after the protest. (PSOF ¶ 67,

13

Exs. 23–25). Additionally, from Google, Riley discovered the existence of nine emails

14

which indicate that Mayor Kuykendall was corresponding with his assistant, Goodman,

15

and Edelbrock during the critical period of October 26–29, 2010.

16

Defendants produced none of these emails. Accordingly, the Court finds that Defendants

17

destroyed emails relevant to this case.

18

d.

These emails indicate that Mayor Kuykendall was

(PSOF ¶ 74).

Appropriate Sanctions

19

Riley argues that Defendants’ actions entitle her to claim-dispositive sanctions.

20

Specifically, Riley asks the Court to “find that the spoliated evidence would have

21

established that (1) Defendants intentionally interfered with Riley’s employment

22

relationship causing her termination, and (2) Defendants’ conduct was improper.” (Doc.

23

271 at 19). Here, such a sanction is claim-dispositive because it would effectively be a

24

finding that the two disputed elements of Riley’s tortious interference claim are not in

25

genuine dispute. See, supra, II.C.2.b. Riley also requests an award of attorneys’ fees and

26

costs incurred in connection with seeking the spoliated evidence and incurred in

27

connection with this motion. (Id. at 21). The Court “must determine which sanction best

28

(1) deters parties from future spoliation, (2) places the risk of an erroneous judgment on

- 33 -

1

the spoliating party, and (3) restores the innocent party to their rightful litigation

2

position.” Surowiec, 790 F.Supp.2d at 1008 (internal quotation and citation omitted).

3

There is a five-part test to determine whether a sanction determining liability in

4

favor of one party is just: “(1) the public’s interest in expeditious resolution of litigation;

5

(2) the court’s need to manage its docket; (3) the risk of prejudice to the other party; (4)

6

the public policy favoring the disposition of cases on their merits; and (5) the availability

7

of less drastic sanctions.” Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011)

8

(internal citation omitted).

9

Here, the first two factors favor Riley. Because the Court and the public have a

10

strong interest in judicial efficiency and the prompt resolution of litigation, Defendants’

11

failure to preserve evidence, and the resulting delay caused by discovery disputes and the

12

instant motion for sanctions, weigh in favor of granting the factual findings sought by

13

Riley. See Surowiec, 790 F.Supp.2d at 1009.

14

The third factor weighs neither for, nor against, granting the factual findings

15

sought by Riley. The third factor, prejudice, “looks to whether the spoliating party’s

16

actions impaired the non-spoliating party’s ability to go to trial or threatened to interfere

17

with the rightful decision of the case.” Leon, 464 F.3d at 959 (citation and brackets

18

omitted). Here, it is apparent that Riley has been prejudiced by the spoliation. However,

19

Riley did have access to Goodman’s email account and discovered multiple emails

20

supporting her claims. Thus, Riley possesses at least some of the relevant emails that

21

Defendants destroyed. Additionally, Defendants, Goodman, Boks, and others have all

22

provided deposition testimony stating that Defendants did not play a role in YHS’s

23

decision to terminate Riley’s employment and that relevant emails never existed.

24

Although Riley has offered substantial evidence that relevant emails existed and

25

challenging the credibility of the various deponents, their testimony nonetheless indicates

26

that the previous existence (and destruction) of any “smoking gun” emails is speculation.

27

Consequently, the Court finds that Riley has not demonstrated sufficient prejudice for the

28

third factor to weigh in her favor.

- 34 -

1

The fourth and fifth factors weigh against granting the factual findings sought by

2

Riley. Here, there is a genuine dispute of fact which public policy favors be resolved on

3

its merits.

4

resolution of Riley’s § 1983 claim on its merits.19 Consequently, the Court finds that a

5

lesser sanction would correct any interference with a rightful decision of the case

6

attributed to the spoliation. See Leon, 464 F.3d at 959 (quoting Rimkus Consulting

7

Group, Inc.v. Cammarata, 688 F.Supp.2d at 618 (S.D. Tex. 2010)) (“When a party is

8

prejudiced, but not irreparably, from the loss of evidence that was destroyed with a high

9

degree of culpability, a harsh, but less extreme sanction than dismissal or default is to

10

permit the fact finder to presume that the destroyed evidence was prejudicial.”).

11

Accordingly, the Court finds that a sanction granting the factual findings Riley seeks

12

would be inappropriate in this case.

Moreover, granting the factual findings Riley seeks would hinder the

13

However, the Court finds adverse inference instructions to be warranted to the

14

extent Defendants’ spoliation affects Riley’s ability to prove her claim. The Parties shall

15

submit proposed adverse inference instructions with the other jury instructions to be filed

16

before trial.
4.

17

Attorneys’ Fees

18

Riley also requests an award of attorneys’ fees and costs incurred in connection

19

with seeking the spoliated evidence and incurred in connection with this motion. “Under

20

its ‘inherent powers,’ a district court may also award sanctions in the form of attorneys’

21

fees against a party or counsel who acts in bad faith, vexatiously, wantonly, or for

22

oppressive reasons.” Leon, 464 F.3d at 961 (internal quotation and citation omitted).

23

“Before awarding such sanctions, the court must make an express finding that the

24

sanctioned party’s behavior constituted or was tantamount to bad faith.” Id. (citation

25

omitted). “A party demonstrates bad faith by delaying or disrupting the litigation or

26
19

27
28

Because Riley’s tortious interference and § 1983 claims rely on some
overlapping factually allegations (that Defendants threatened YHS with economic harm
unless YHS terminated Riley), dispositive factual findings for the tortious interference
claim could be used collaterally to resolve disputed issues of fact in Riley’s § 1983 claim.
Riley, however, has not asked for sanctions in relation to her § 1983 claim.
- 35 -

1

hampering enforcement of a court order.” Id. (internal citation omitted). “The bad faith

2

requirement ensures that the district court’s exercise of its broad power is properly

3

restrained, and preserves a balance between protecting the court’s integrity and

4

encouraging meritorious arguments.”

5

“Additionally, the amount of monetary sanctions must be reasonable.” Id. (internal

6

quotation and citation omitted). The Court has already found that Defendants acted in

7

bad faith. Accordingly, Riley is entitled to her reasonable attorneys’ fees incurred in

8

connection with this motion and seeking spoliated evidence.

Id. (internal quotation and citation omitted).

9

The Parties are directed to confer in good faith to resolve any disputes concerning

10

the amount of reasonable expenses and fees. See L.R. Civ. 54.2(d)(1). If the Parties are

11

unable to agree, Riley may file a motion pursuant to Local Rule 54.2. Any such motion

12

shall be filed, with a supporting memorandum, on or before March 28, 2014, with the

13

response and reply briefs due in accordance with the time periods provided in Local Rule

14

54.2(b)(3) and (4).

15

B.

16

Defendants’ Response (Doc. 285) to Riley’s Motion for Partial Summary

17

Judgment (Doc. 271) includes a Cross-Motion for Discovery Sanctions. (Doc. 285 at 23–

18

25). Defendants’ allege that Riley deleted numerous emails that may have been relevant

19

to this litigation and even closed an email account. (Id.). Defendants’ argue that if the

20

Court evaluates Riley’s conduct through the same lens it uses to evaluate Defendants’

21

conduct, then Riley’s actions warrant “either default or an adverse inference, and

22

attorneys’ fees.” (Id. at 24).

23
24
25
26
27
28

Defendants’ Motion

As explained above,
[a] party seeking sanctions for spoliation of evidence must
prove the following elements: (1) the party having control
over the evidence had an obligation to preserve it when it was
destroyed or altered; (2) the destruction or loss was
accompanied by a ‘culpable state of mind;’ and (3) the
evidence that was destroyed or altered was ‘relevant’ to the
claims or defenses of the party that sought the discovery of
the spoliated evidence[.]

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1

Surowiec, 790 F.Supp.2d at 1005. Here, Defendants cannot be entitled to sanctions

2

against Riley because Defendants have made no attempt to satisfy the third element,

3

relevance. (See Doc. 285 at 23–25; Doc. 297). Even assuming that Defendants’ factual

4

allegations regarding Riley’s conduct are true, Defendants have not made any showing

5

regarding what, if any, evidence possibly could have been lost that may be relevant to

6

Riley’s claims or Defendants’ defenses. Indeed, Defendants have not even speculated as

7

to what relevant evidence may have been discovered in Riley’s email. Accordingly, the

8

Court denies Defendants’ Cross-Motion for Discovery Sanctions (Doc. 285).

9

IV.

CROSS-MOTIONS TO STRIKE

10

Both Parties have cross-motions to strike various portions of the several

11

statements of fact submitted to support their motions for summary judgment and cross-

12

motions for discovery sanctions.

13

“Controverting Statement of Facts Regarding Plaintiff’s Additional Statement of Facts in

14

Opposition to Defendants’ Motion for Summary Judgment” (Doc. 288) because “it is not

15

authorized by L.R. Civ. 56.1.” (Doc. 296 at 1). Additionally, Riley “requests that the

16

Court strike legal arguments that Defendants improperly raised in their oppositions

17

[(Docs. 267, 286)] to Plaintiff’s statement of facts.” (Id.). Responding that what’s good

18

for the goose is good for the gander, Defendants filed a Cross-Motion to Strike Riley’s

19

“Response to Defendants’ Supplemental Statement of Facts in Support of Defendants’

20

Cross Motion for Sanctions” (Doc. 292) and various “legal arguments” couched as

21

“facts” in Riley’s other statements of fact (Docs. 280, 292, 294-1, 295, 295-2).

Riley moves (Doc. 296) to strike Defendants’

22

First, the Court notes that it has not relied on either Parties’ objected-to statements

23

of facts (Docs. 292, 296) when reaching its decisions on the four summary judgment and

24

sanctions motions. Therefore, whether or not either filing is authorized by the Local

25

Rules is moot. Second, to the extent that both Parties base their cross-motions to strike

26

on the fear that this Court will be unduly swayed by the opposing party’s legal arguments

27

couched as factual contentions, the Court reminds both parties that the Court is fully

28

capable of delineating between factual statements supported by the record and arguments,

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1

no matter their nom de guerre. As such, the Parties have no cause for dread; the Court

2

has not misconstrued any legal arguments contained in the multiple statements of fact as

3

factual evidence of a genuine dispute over any material facts. In sum, the Court finds that

4

the quantity and form of the Parties’ various statements of fact has not prejudiced either

5

party. Accordingly, both Parties’ Motions to Strike (Docs. 296, 301) are denied.

6

VI.

CONCLUSION

7

Accordingly,

8

IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. 266)

9

and Riley’s Motion for Partial Summary Judgment (Doc. 271) are DENIED.

10

IT IS FURTHER ORDERED that Riley’s Motion for Discovery Sanctions (Doc.

11

271) is GRANTED in part and DENIED in part as set forth in this Order. As set forth in

12

this Order, the Parties shall submit proposed adverse inference instructions with the other

13

jury instructions to be filed before trial.

14

IT IS FURTHER ORDERED that the Parties are directed to confer in good faith

15

to resolve any disputes concerning the amount of reasonable expenses and fees related to

16

Defendants’ spoliation. See L.R. Civ. 54.2(d)(1). If the Parties are unable to agree, Riley

17

may file a motion pursuant to Local Rule 54.2. Any such motion shall be filed, with a

18

supporting memorandum, on or before March 28, 2014, with the response and reply

19

briefs due in accordance with the time periods provided in Local Rule 54.2(b)(3) and (4).

20
21
22
23
24

IT IS FURTHER ORDERED that Defendants’ Cross-Motion for Discovery
Sanctions (Doc. 285) is DENIED.
IT IS FINALLY ORDERED that Riley’s Motion to Strike (Doc. 296) and
Defendants’ Cross-Motion to Strike (Doc. 301) are DENIED.
Dated this 18th day of February, 2014.

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27
28

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