Konarski et al v. Tucson, City of et al

Filing 312

ORDER that the defendants' Motion for Reconsideration is DENIED (Doc. 299 ). The deadline for lodging a proposed pretrial order is extended to 8/17/2018. See (Doc. 165 .) The parties may use as a guideline the example provided on the court's website at JGZ Joint Proposed Pretrial Order-Civil.pdf. Signed by Magistrate Judge Leslie A Bowman on 7/19/2018. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Frank Konarski, et al.,

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No. CV-11-00612-TUC-LAB

Plaintiffs,

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v.

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City of Tucson, et al.,

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ORDER

Defendants.

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Pending before the Court is the defendants’ “Motion for reconsideration of order

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denying defendants’ motion for partial summary judgment on plaintiffs’ class-of-one

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claim (Doc. 295) or, in the alternative, for clarification of this Court’s ruling,” filed on

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June 20, 2018. (Doc. 299)

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In the pending motion, the defendants argue that the Court erred in distinguishing

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this case from Engquist v. Oregon Dep’t. of Agr., 553 U.S. 591 (2008). (Doc. 299 at 3:4-

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15). They believe that the Court should not have recognized a difference between a

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defendant city acting as an employer and as an administrator (of HAP contracts). Id. The

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defendants also argue that the Court was mistaken in finding that the plaintiffs’ class-of-

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one claim was not barred because of the issue of fact as to whether the HAP agreements

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were withdrawn as an exercise of discretion or out of personal animus. Id. at 3:17-4:5.

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The defendants finally argue that the Court should have required the plaintiffs to show

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that they were treated differently from similarly situated individuals. Id. at 5:23- 6:22. In

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the alternative, they request clarification on the issue of liability on the class-of-one

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claim.

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The Court denies the defendants’ motion because it puts forward arguments that
were, or could have been, raised earlier.

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Discussion

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Previously, on September 14, 2017, the defendants filed a motion for partial

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summary judgment. (Doc. 217) The Court granted the motion in part and denied it in part

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on June 5, 2018. (Doc. 295) The defendants moved for an extension of the deadline for

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filing a motion for reconsideration on June 12, 2018. (Doc. 298) The motion for

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extension was granted nunc pro tunc and the motion for reconsideration was filed on June

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20, 2018. (Doc. 299)

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a. Standard

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A motion for reconsideration is appropriate where the district court “(1) is

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presented with newly discovered evidence, (2) committed clear error or the initial

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decision was manifestly unjust, or (3) if there is an intervening change in controlling

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law.” School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th

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Cir. 1993); see also LRCiv 7.2(g). Such motions should not be used for the purpose of

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asking a court “to rethink what the court had already thought through – rightly or

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wrongly.” Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995);

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see also United States v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998). Nor may

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they be used to “raise arguments or present evidence for the first time when they could

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reasonably have been raised earlier in the litigation.” Kona Enterprises, Inc. v. Estate of

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Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Mere disagreement with a previous order is

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an insufficient basis for reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp.

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1572, 1573 (D. Haw. 1988); Rowe ex rel. Rowe v. Bankers Life & Cas. Co., 572 F. Supp.

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2d 1138, 1147 (D. Ariz. 2008), clarified on denial of reconsideration (Sept. 17, 2008).

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b. Engquist

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The defendants argue first that they are entitled to summary judgment under

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Engquist. See Engquist v. Oregon Dep’t. of Agr., 553 U.S. 591 (2008). In that case, the

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Supreme Court explained that class-of-one claims based on “arbitrary, vindictive and

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malicious reasons” are not permitted in the employment context. 553 U.S. at 594-595.

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Engquist teaches that personality conflicts and the like are a valid problem in an

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employment context, but they cannot interfere with “arms-length government decisions.”

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Id. at 604.

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Constant review of day-to-day discretionary acts would undermine

government functioning. Id. at 607.

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The defendants explain that the Ninth Circuit applies Engquist past the

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employment context into any “forms of state action that by their nature involve

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discretionary decision making based on a vast array of subjective, individualized

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assessments.” Towery v. Brewer, 672 F.3d 650, 660 (9th Cir. 2012) (execution protocol).

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(Doc. 299 at 7:19-8:3) Towery also precludes class-of-one claims “absent any pattern of

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generally exercising the discretion in a particular manner while treating one individual

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differently and detrimentally.” 672 F.3d at 660-61. The defendants also note that both

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Engquist and Towery emphasize the type of government action, not the motive. (Doc.

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299, pg. 8)

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The defendants support their claim by stating that Congress gives the defendant

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city discretion to determine Section 8 participation under 24 C.F.R. § 982.306, which

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makes such decisions unreviewable. (Doc. 299, pg. 8). Thus, review of the decision by

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the Court “will have undone Congress's (and the States') careful work.” Engquist, 553

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U.S. at 607.

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The defendants further believe that Towery precludes the class-of-one claim

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because the plaintiffs have no evidence of a pattern by the defendants of rescinding

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contracts in a particular way and treating them differently and detrimentally. Further, they

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argue that the plaintiffs have not been treated detrimentally at all, because they had no

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right to Section 8 participation and the defendants have compensated them for the

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inconvenience.

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The defendants allege no new evidence. Engquist and Towery were both decided

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before the defendants’ original motion for summary judgment (doc. 22), so there has

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been no change in controlling law. The defendants use language from LRCiv 7.2(g),

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stating that the court “misapprehended” Engquist. (Doc. 299 at 3) Presumably, this is a

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reference to the “clear error” or “manifestly unjust” standard contemplated in School

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Dist. No. 1J. See School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255,

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1263 (9th Cir. 1993)

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Given that the precedents the defendants rely on have existed since early 2012,

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there is no reason the defendants could not have raised these arguments earlier in the

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litigation. Thus, Kona precludes this claim. See Kona Enterprises, Inc. v. Estate of

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Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

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c. Similarly-situated individuals

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The defendants state that a class-of-one plaintiff must show that he was

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“intentionally treated differently from others similarly situated,” Vill. of Willowbrook v.

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Olech, 528 U.S. 562, 564 (2000), and that there was no rational basis for such treatment.

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Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1023 (9th Cir. 2011). They argue that

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plaintiffs have not shown evidence of others similarly situated. (Doc. 299, pg. 10) The

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defendants specifically cite Prime Healthcare Servs. v. Harris, 216 F. Supp. 3d 1096,

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1117 (S.D. Cal. 2016), in which the court dismissed a class-of-one claim that lacked

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evidence of sufficiently similar others and found that a pretext of animus did not affect

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the “similarly situated” requirement of the claim. Id. at 1118.

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The defendants also disagree with the Court’s reliance on Swanson v. City of

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Chetek, 719 F.3d 780 (7th Cir. 2013), distinguishing that case because the plaintiff there

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could exclude all rational bases for the conduct at issue. They argue that the Seventh

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Circuit otherwise bars class-of-one claims with any possible rational basis. Miller v. City

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of Monona, 784 F.3d 1113, 1121 (7th Cir. 2015); Fares Pawn, LLC v. Ind. Dep't of Fin.

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Insts., 755 F.3d 839, 845 (7th Cir. 2014). The Ninth Circuit has not ruled on this issue.

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(Doc. 299, pg. 12)

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The defendants further require that the plaintiffs show evidence of competitors

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with an "extremely high degree of similarity between themselves and the persons to

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whom they compare themselves." Wright v. Incline Vill. Gen. Improvement Dist., 665

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F.3d 1128, 1140 (9th Cir. 2011). Competitors “are similarly situated only when they are

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'arguably indistinguishable.'" Erickson v. Cty. of Nevada ex rel. Bd. of Supervisors, 607 F.

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App'x 711, 712 (9th Cir. 2015) (quoting Engquist, 553 U.S. at 601). According to the

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defendants this would mean other landlords “with a similar history of acrimonious

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conduct towards the City and discriminatory conduct towards tenants who were allowed

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to retain their contracts. Erickson, 607 F. App'x at 712.” (Doc. 299, pg. 14)

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These arguments are precluded for the reasons explained above. They were, or

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could have been, raised earlier in the litigation, and are thus inappropriate for a

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reconsideration motion.

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d. Clarification

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The defendants move in the alternative for clarification of the Court’s order

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granting in part the motion for partial summary judgment. It appears that they would

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have the Court clarify that the class-of-one claim is against Peggy Morales alone, and not

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against the city. (Doc. 299, pg. 14)

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In the interest of clarification, the court states as follows: In its order, the court

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granted the city’s motion for partial summary judgment on the issue of Monell liability.

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(Doc. 295, pg. 9-14) The class-of-one claim does not create liability for the city pursuant

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to Monell. Id.; Monell v. Department of Social Services, 436 U.S. 658, 690-691 (1978).

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The court was not asked to determine which of the individual defendants was potentially

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liable, but Morales’s potential liability does not appear to be in dispute.

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The parties may address the issue further in their proposed pretrial order.

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IT IS ORDERED that the defendants’ motion for reconsideration is DENIED.

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(Doc. 299) The deadline for lodging a proposed pretrial order is extended to August 17,

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2018. See (Doc. 165) The parties may use as a guideline the example provided on the

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court’s website at JGZ Joint Proposed Pretrial Order-Civil.pdf.

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Dated this 19th day of July, 2018.

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