De Silva v. Pima County Government et al

Filing 76

ORDER denying 68 MOTION for Reconsideration re: 65 Order on Motion to Dismiss Counts/Claims . Signed by Magistrate Judge Michael A Ambri on 1/8/2025. (DLC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Nirosh H. De Silva,
Plaintiffs,
vs.

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Pima County Government; et al.,

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Defendants.

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No. CV 24-00200-TUC-MAA
ORDER

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Pending before the court is the plaintiff’s Motion for Reconsideration, filed on

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November 25, 2024. Doc. 68. The defendants filed a response on December 18, 2024. Doc.

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74. The plaintiff filed a reply on December 24, 2024. Doc. 75.

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The court finds that the motion is suitable for decision without oral argument. See
LRCiv 7.2(f).

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On November 12, 2024, the court issued an order granting in part the defendants’

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partial motion to dismiss. Doc. 65. The plaintiff, De Silva, moves that this court reconsider

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its ruling in so far as it grants the defendants’ motion to dismiss De Silva’s claims that the

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defendants “discriminated against Plaintiff by failing to have and/or enforce adequate

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systems, customs, practices, policies, and procedures that would have prevented the

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discrimination he alleges” and his claims that he suffered employment discrimination due to

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negligence or negligence per se. Doc. 68, p. 1.

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A motion for reconsideration invites the court to re-litigate a matter, but it is

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appropriate in only “rare circumstances.” Defenders of Wildlife v. Browner, 909 F. Supp.

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1342, 1351 (D. Ariz. 1995). It is “an extraordinary remedy, to be used sparingly in the

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interests of finality and conservation of judicial resources.” Kona Enterprises, Inc. v. Est.

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of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (punctuation modified). “Reconsideration is

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appropriate if the district court (1) is presented with newly discovered evidence [that could

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not have been presented earlier with reasonable diligence], (2) committed clear error or the

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initial 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. AC and S, Inc., 5 F.3d 1255, 1263 (9th Cir.

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1993); see also LRCiv 7.2(g) (“The Court will ordinarily deny a motion for reconsideration

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of an Order absent a showing of manifest error or a showing of new facts or legal authority

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that could not have been brought to its attention earlier with reasonable diligence.”).

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A motion for reconsideration should not be used for the purpose of asking a court “to

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rethink what the court had already thought through – rightly or wrongly.” Defenders of

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Wildlife, 909 F. Supp. at 1351 (punctuation modified). A motion for reconsideration “may

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not 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) (emphasis in original). Nor may a motion for

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reconsideration repeat any argument previously made in support of or in opposition to a

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motion. Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D.

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Ariz. 2003); LRCiv 7.2(g)(1). Mere disagreement with a previous order is an insufficient

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basis for reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D.

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Haw. 1988).

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De Silva does not allege that he has newly discovered evidence or that there has been

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an intervening change in controlling law. Doc. 68. Instead, he argues that the court’s ruling

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was manifestly unjust. The court does not agree.

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“A finding of manifest injustice requires meeting a high bar.” Henrickson v. Nevada,

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2021 WL 12300286, at *2 (D. Nev. May 13, 2021). “The courts of the Ninth Circuit

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generally treat manifest injustice as very nearly synonymous with clear error, defining

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manifest injustice as any error in the trial court that is direct, obvious and observable, such
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as a defendant’s guilty plea that is involuntary.” Id. (punctuation modified). “[T]he decision

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must strike the court as more than just maybe or probably wrong — it must be dead wrong.”

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United States v. Gila Valley Irrigation Dist., 2024 WL 263566, at *1 (D. Ariz. Jan. 24, 2024).

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In the pending motion, De Silva argues generally that this court’s prior ruling

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misapplied or overlooked certain precedential rulings. Doc. 68. He maintains specifically

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that the court’s ruling regarding his employer’s protocol for reviewing alleged claims of

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discrimination failed to follow the Supreme Court’s latest decision in the area: Muldrow v.

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City of St. Louis, Missouri, 601 U.S. 346, 144 S. Ct. 967, 218 (2024). In Muldrow, the Court

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discussed the amount of harm a potential plaintiff must suffer when she alleges that a

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“transfer brought about some disadvantageous change in an employment term or condition.”

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Id. at 347. The Supreme Court held that this change need not be “significant” but “a

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transferee must show some harm respecting an identifiable term or condition of

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employment.” Id. This case is certainly informative, but it is not on all fours with the

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pending action. Reasonable minds could differ as to how and to what extent Muldrow should

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have informed this court’s prior order. Accordingly, De Silva has not shown that this court’s

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prior decision was “dead wrong.” United States v. Gila Valley Irrigation Dist., 2024 WL

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263566, at *1 (D. Ariz. Jan. 24, 2024).

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De Silva further argues that this court’s dismissal of the negligence and negligence

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per se claims “was contrary to Arizona case law and precedent.” Doc. 68, p. 5. The pending

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motion revisits certain points that he presented previously, which is not appropriate on a

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motion for reconsideration. See Doc. 44; see also LRCiv 7.2(g). He includes some new

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arguments, but he fails to show that he could not have raised these points earlier.

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De Silva has not established that the court has committed “clear error” or that it has

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made an error “direct, obvious and observable.” Henrickson v. Nevada, 2021 WL 12300286,

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at *2 (D. Nev. May 13, 2021). In essence, he moves that this court “rethink what the court

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has already though through.” Defenders of Wildlife, 909 F. Supp. at 1351. That is

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insufficient.

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De Silva moves in the alternative that this court should certify the state law negligence

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issue to the Arizona Supreme Court. “[T]he Arizona Supreme Court may accept a request

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for certification only if the question to be resolved ‘may be determinative of the cause then

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pending in the certifying court . . . .’” Mohareb v. Maricopa Cnty. Special Health Care Dist.,

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2024 WL 2746952, at *4 (D. Ariz. May 29, 2024) (quoting A.R.S. § 12-1861).

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In this case, the question to be resolved would determine the viability of De Silva’s

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negligence claims, but it would not affect his claims to intentional workplace discrimination.

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These latter claims are the gravamen of De Silva’s complaint and seem to be a prerequisite

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for negligence liability to attach. Accordingly, this question is not “determinative of the

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cause [now] pending in the certifying court,” and this issue cannot be referred to the Arizona

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Supreme Court. Id. (emphasis in original); see, e.g., Id. (“Here, any certification request

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would not be potentially ‘determinative of the cause then pending in the certifying court,’ .

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. . because it would affect, at most, one of Plaintiff’s six claims.”).

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IT IS ORDERED that the plaintiff’s Motion for Reconsideration, filed on November
25, 2024 is DENIED. Doc. 68.
DATED this 8th day of January, 2025.

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