Yu v. Idaho State University et al

Filing 72

MEMORANDUM DECISION AND ORDER RE PLAINTIFF'S MOTION FOR RECONSIDERATION (DKT. 68). Based on foregoing, IT IS HEREBY ORDERED that Plaintiff's Motion for Reconsideration of Court's Order re Plaintiff's Second Through Eighteenth Causes of Action (Dkt. 68 ) is DENIED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

Case No.: 4:15-cv-00430-REB

JUN YU,
Plaintiff,

MEMORANDUM DECISION AND
ORDER RE PLAINTIFF’S MOTION
FOR RECONSIDERATION (DKT. 68)

vs.
IDAHO STATE UNIVERSITY,
and
JOHN/JANE DOES I through X, whose true
identities are presently unknown,
Defendants.

Pending is Plaintiff’s Motion for Reconsideration of Court’s Order Re Plaintiff’s Second
Through Eighteenth Causes of Action (Dkt. 68), seeking reconsideration of this Court’s
Memorandum Decision and Order Re Defendant’s Renewed Motion for Summary Judgment
(Dkt. 63) dismissing those claims. Having reviewed the briefing and supporting filings, and
otherwise being fully advised, the Court enters the following Decision and Order:
I. BACKGROUND
Plaintiff Jun Yu (“Yu”) is a Chinese national who matriculated into the Doctoral Clinical
Psychology Program at Defendant Idaho State University (“ISU”) in 2008. First Am. Compl. ¶¶
14–16 (Dkt. 41). By mid-2012, all that remained for Yu to complete the requirements of the
program was a successful clinical internship. Id. ¶ 75, 161. Yu coordinated with ISU and the
prestigious Cleveland Clinic Center for Autism (“CCCA”) in Cleveland, Ohio to develop a
customized internship that would allow him to fulfill his final graduation requirement. Id. ¶ 87.

MEMORANDUM DECISION AND ORDER RE PLAINTIFF’S MOTION FOR
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He started the internship, which was designed to last for at least twelve months, on January 2,
2013. Id. ¶¶ 107, 108 (Dkt. 41).
Yu did not complete the internship, as he was dismissed from the CCCA in
approximately April of 2013. Id. ¶ 130. In May of 2013, ISU told Yu that the graduate faculty of
the Psychology Department had voted to dismiss him from its doctoral program. Id. ¶ 6, 136.
After various unsuccessful voluntary appeals, Yu received a letter from ISU’s Graduate School
Dean dated October 2, 2013 that denied Yu’s final appeal and stated that his dismissal was
effective immediately. Id. ¶¶ 7–10; see also Pl.’s Resp. Exhibit PR1-8 (Dkt. 56-12) (the letter).
Yu initiated this action on September 16, 2015 by filing his Complaint against ISU,
alleging liability for violations of Title VI of the Civil Rights Act, deprivations of his
constitutional rights under 42 U.S.C. § 1983, and negligent infliction of emotional distress.
Compl. ¶¶ 170–181 (Dkt. 1). On March 29, 2017, he filed an Amended Complaint, expanding
his § 1983 claim to include allegations that ISU denied both his procedural due process rights
(Count Two) and his substantive due process rights (Count Four). First Am. Compl. ¶¶ 354–359,
363–367 (Dkt. 41). He also added counts related to promissory estoppel and claims arising in
contract law, bringing a total number of eighteen claims. Id. ¶¶ 368–435.
Both the Complaint and the First Amended Complaint name ISU and “John/Jane Does I
through X, whose true identities are presently unknown” as defendants. Compl. (Dkt. 1); First
Am. Compl. (Dkt. 41). Yu did not timely move to amend to substitute any Doe defendants or
join additional defendants, and the deadline to do so has passed. Second Am. Case Mgmt. Order
1 (Dkt. 29). Further, Yu did not name as a defendant any individuals associated with ISU,
whether acting in an official capacity or not.

MEMORANDUM DECISION AND ORDER RE PLAINTIFF’S MOTION FOR
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ISU moved for summary judgment, seeking dismissal of all eighteen claims. As relevant
here, ISU argued that ISU is immune from suit under the Eleventh Amendment for counts two
through eighteen. This Court agreed with ISU, granted in part ISU’s motion for summary
judgment, and dismissed Yu’s second through eighteenth claims. (Dkt. 63.) Yu now moves for
reconsideration of that decision. (Dkt. 68.) For the reasons below, the Court denies Yu’s motion.
II. LEGAL STANDARD
A motion for reconsideration of summary judgment may be granted where: (1) the
motion is necessary to correct manifest errors of fact or law; (2) the moving party presents newly
discovered evidence; (3) reconsideration is necessary to prevent manifest injustice; or (4) there is
an intervening change in the law. FED. R. CIV. P. 59(e); see also Turner v. Burlington N. Santa
Fe R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003); and 389 Orange St. Partners v. Arnold, 179 F.3d
656, 661 (9th Cir. 1999).
III. DISCUSSION
Yu moves the Court to reconsider its Memorandum Decision and Order granting ISU
partial summary judgment by dismissing claims two through eighteen of Yu’s operative
complaint. (Dkt. 68.) He contends both that there is an intervening change in the law and that
reconsideration is necessary to prevent manifest injustice. Mem. ISO Mot. for Recons. 3 (Dkt.
68-1). He bases his argument on a recent ruling in Duffin v. Idaho State University, No. 4:16CV-00209-BLW. In that case, Chief U.S. District Judge B. Lynn Winmill issued an order on
December 21, 2017 concluding ISU had waived its Eleventh Amendment immunity. 2017 WL
6543873 (“Duffin” or “Duffin MDO”). Judge Winmill quoted precedent holding that “[a] state
may waive its sovereign immunity through conduct that is incompatible with an intent to
preserve that immunity” and that “state defendants engaged in conduct ‘incompatible with’ an

MEMORANDUM DECISION AND ORDER RE PLAINTIFF’S MOTION FOR
RECONSIDERATION – 3

intent to preserve sovereign immunity when they raised a sovereign immunity defense only
belatedly, after extensive proceedings on the merits.” Duffin MDO at *2 (quoting Johnson v.
Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1021 (9th Cir. 2010)). Yu argues that the
same reasoning applies to this case. Plf.’s Mem. ISO Mot. for Reconsideration 4 (Dkt. 68-1).
The Court disagrees. A comparison of the facts between the cases is illustrative. In
Duffin, Plaintiff Orin Duffin sued ISU on May 20, 2016, alleging he suffered religious
discrimination and other wrongs in 2014 and 2015. Duffin MDO at *1. Based upon stipulated
deadlines, a case management order was entered setting January 30, 2017 as the dispositive
motion deadline. Id. By further stipulation, that deadline was extended to July 14, 2017. Id. The
parties filed cross-motions for summary judgment on the deadline. Id. ISU “raised sovereign
immunity in [its] motion for summary judgment.”1 Id. at *3. In declining to apply sovereign
immunity, Judge Winmill noted that ISU’s summary judgment motion was delayed by
stipulation and thus was filed more than two years after the events in question. Id. Accordingly,
Judge Winmill found that Duffin’s claims were likely barred in state court by Idaho’s two-year
statute of limitations for personal injury actions. Id. (citing I.C. § 5-219(4)). Judge Winmill also
found no discovery was necessary on the issue of Eleventh Amendment immunity, so ISU could
have moved to apply the defense earlier. Id. Ultimately he concluded that ISU’s delay in moving
for sovereign immunity “was a tactical attempt to deny Duffin his day in Court,” which, if
permitted, “would fly in the face of the Rule 1 admonition that the Court construe and apply the

1

The Duffin MDO does not indicate whether ISU or any co-defendants raised the
sovereign immunity defense in their respective answers. Although Yu contends they did, citing
entries from the Duffin docket, such filings are not properly in the instant record and the Court
will not take judicial notice of them. Whether the defense was raised by answer is not dispositive
under Ninth Circuit precedent, so the Court need not address this issue.
MEMORANDUM DECISION AND ORDER RE PLAINTIFF’S MOTION FOR
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rules and procedures in a manner that secures the just, speedy and inexpensive resolution of all
disputes.” Id.
In this case, Yu seeks redress from ISU’s final act dismissing him from its Graduate
School on October 2, 2013. First Am. Compl. ¶ 10 (Dkt. 41); MDO Re Def.’s Renewed Mot. for
Summ. J. 10 (Dkt. 63). Yu filed his complaint on September 16, 2015 (Dkt. 1). ISU first raised
an Eleventh Amendment immunity defense in its answer on October 8, 2015 (Dkt. 6 p. 7).2
Although initially set to be completed by August 3, 2016 (Dkt. 15), factual discovery was
extended by stipulation to September 2, 2016. (Dkts. 19, 29, 31 (orders); Dkts. 18, 25, 30
(stipulations).) ISU moved for summary judgment seeking dismissal of all claims except Yu’s
Title VI claim on Eleventh Amendment grounds. (Dkt. 32 pp. 7–11).
On March 27, 2017 this Court granted Yu’s earlier-filed motion to amend his complaint.
(Dkts. 22, 40.) Yu filed an amended complaint expanding the case from three to eighteen claims
(Dkt. 41) on March 29, 2017 and ISU filed a responsive answer on May 3, 2017 (Dkt. 48), again
raising Eleventh Amendment immunity as a defense. Discovery was extended through August
11, 2017. (Dkt. 53.) ISU renewed its summary judgment motion. (Dkt. 55.) It is the Court’s
memorandum decision and order on that motion that Yu now asks the Court to reconsider.
A.

Duffin Does Not Constitute an Intervening Change in the Law.
Yu contends that, prior to the Duffin MDO, Eleventh Amendment immunity could be

asserted for the first time on appeal and that waiver had to be unequivocally expressed. Plf.’s
Mem. ISO Mot. for Reconsideration 4 (Dkt. 68-1). The Duffin MDO, Yu argues, is an
intervening change in law because “it would not have earlier been reasonable for Plaintiff to

2

As discussed further below, two years had elapsed from the date of Yu’s alleged injury
by the time ISU timely filed its answer.
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assert an argument of waiver as articulated in the Duffin decision, given legal precedent and the
facts in the present case.”
This argument is unpersuasive. First, the Duffin MDO was issued by a district judge in
the District of Idaho. Notwithstanding the respect the undersigned has for his colleagues on this
bench, the “decision of a federal district court judge is not binding precedent in either a different
judicial district, the same judicial district, or even upon the same judge in a different case.”
Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (quoting 18 J. Moore et al., Moore’s Federal
Practice § 134.02[1][d], pp. 134–26 (3d ed. 2011)). Thus, the Duffin MDO is not a “change in
the law” justifying reconsideration.
Secondly, the Duffin MDO is a well-reasoned decision that applies, rather than extends,
Ninth Circuit law. It relies on Johnson, cited supra, for the proposition that a state may waive
sovereign immunity by its conduct. In Johnson, the state defendant raised Eleventh Amendment
immunity in its answer, but subsequently “litigated the suit on the merits, participated in
discovery, and filed a motion to dismiss and a summary judgment motion without pressing a
sovereign immunity defense.” 623 F.3d at 1022. In holding the defendant had waived the
defense, the court concluded the defendant “made a tactical decision to delay asserting the
sovereign immunity defense” which “undermines the integrity of the judicial system[,] ... wastes
judicial resources, burdens jurors and witnesses, and imposes substantial costs upon the
litigants.” Id. (alteration in original; quotation marks omitted). Thus, after Johnson, it is not clear
that ISU could have raised the defense for the first time on appeal, as Yu contends.
The distinction between Duffin and prior precedent, if there is any distinction, is in what
facts – not what law – were relied upon to conclude the state defendant had waived sovereign
immunity. The Court is unpersuaded by Yu’s argument that “[p]rior to the decision in Duffin . . .

MEMORANDUM DECISION AND ORDER RE PLAINTIFF’S MOTION FOR
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(3) Eleventh Amendment immunity could be raised for the first time in a motion for summary
judgment, and on appeal even to the United States Supreme Court.” Plf.’s Mem. ISO Mot. for
Reconsideration 8 (Dkt. 68-1). In light of Johnson, Yu could have argued at summary judgment
that ISU had waived sovereign immunity in this case. The Duffin MDO has no impact on this
analysis and it is not an intervening change in the law that warrants reconsideration here.
B.

Duffin Is Factually Distinct from the Instant Case.
Duffin is also factually inapposite to this case. As an initial matter, the dispute resolved in

the Duffin MDO was whether ISU had consented to be sued in federal court. But here, “it is
undisputed that ISU has not consented to be sued in federal court with respect to the claims at
issue.” MDO re Def.’s Renewed Mot. for Summ. J. 12 (Dkt. 63). A motion for reconsideration
may not be used to raise arguments or present evidence for the first time when they could
reasonably have been raised earlier in the litigation. Micha v. Sun Life Assurance of Canada,
Inc., 874 F.3d 1052, 1056 (9th Cir. 2017). Yu suggests that he could not argue that ISU had
consented to be sued in federal court until Duffin was decided. But as discussed supra, Duffin
merely applied existing Ninth Circuit precedent.
Regardless, even when considering the Duffin decision for any persuasive value it might
have for this case, the Court would not have decided ISU’s renewed motion for summary
judgment differently. In Duffin, Judge Winmill concluded that the defendants engaged in “a
tactical attempt to deny Duffin his day in court.” Duffin MDO at *3. Judge Winmill suggests that
this may have been intended to run out the clock so that Duffin’s state-law claims would become
barred by the statute of limitations. Id. There are no facts in this case to suggest a similar motive
by ISU here. Yu filed his original complaint on September 16, 2015 and served ISU with the
summons and complaint on September 18, 2015. (Dkts. 1, 4, 5). Thus, ISU was required to

MEMORANDUM DECISION AND ORDER RE PLAINTIFF’S MOTION FOR
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respond by October 9, 2015. FED. R. CIV. P. 12; Dkt. 5. But Yu’s claims allege conduct that
culminated in his dismissal from ISU based on a letter drafted October 2, 2013 which he
received on October 3, 2013. First Am. Compl. ¶¶ 10, 11 (Dkt. 41) Thus, the two-year statute of
limitations lapsed on Yu’s claims before ISU was even required to respond to the complaint.
ISU’s conduct could not have impacted the running of the statute of limitations. The Court
perceives no evidence that ISU purposefully delayed pressing its Eleventh Amendment defense
to gain a tactical advantage over Yu.3
Other factual distinctions also support the Court’s ruling here. First, Yu alleged, in his
original complaint, a Title VI claim that was indisputably not subject to dismissal under Eleventh
Amendment grounds. Compl. ¶¶ 170–172 (Dkt. 1). Thus, even if ISU had moved to dismiss very
early in the case on Eleventh Amendment grounds, at least one claim would have survived and
discovery would not have been avoided. In Duffin, by contrast, the plaintiff brought five claims
under 42 U.S.C. § 1983 (at *3) and four state-law claims alleging negligence and emotional
distress (at *6–*8). Therefore, it appears there were no claims against ISU that would have
survived a proper Eleventh Amendment challenge4 and that the case could have been resolved

3

The relevant dates for statute of limitations purposes were not fixed until this Court’s
Memorandum Decision and Order granting ISU partial summary judgment. (Dkt. 63.)
Nonetheless, ISU has consistently maintained in this action that the statute of limitations lapsed
no later than October 3, 2015. Indeed, ISU argued at summary judgment that all of Yu’s claims
were time-barred as of May 2015. As such, it is not clear what motive ISU would have had to
delay pressing its sovereign immunity defense. Def.’s Mem. ISO Renewed Mot. for Summ. J. 4
(Dkt. 55-1). Yu offers no evidence or reasoning supporting his argument that ISU intentionally
delayed to gain a tactical advantage.
4

As discussed in the Court’s Memorandum Decision and Order granting partial summary
judgment to ISU, a plaintiff may assert a § 1983 action for prospective relief against state
officials acting in their official capacity under Ex parte Young, 209 U.S. 123, 159–160 (1908),
but the State itself is immune from suit absent waiver or Congressional abrogation of the
immunity. (Dkt. 63 at 15.)
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entirely, at least as to defendant ISU, if ISU had moved to dismiss. Such is not the case here.
Even if ISU had moved to dismiss immediately, the Title VI claim would have survived and
necessitated discovery and further proceedings.
Secondly, the Court’s Case Management Order dated November 6, 2015 included a
footnote, as is typical in such orders issued by this Court, indicating the Court’s policy of
accepting only one dispositive motion per party. CMO 2 n.1 (Dkt. 15). Although ISU’s renewed
motion for summary judgment was ultimately denied as to Yu’s Title VI claim, ISU nonetheless
offered non-frivolous arguments for its dismissal. Because discovery would have been necessary
regardless, no party was prejudiced by ISU’s decision not to move sooner. Nor has Yu alleged
that he was prejudiced by any delay in ISU moving for relief on Eleventh Amendment grounds.
To the contrary, ISU points out that Yu was on notice, repeatedly, of ISU’s intent to seek to
apply sovereign immunity. Def.’s Resp. in Opp. to Plf.’s Mot. for Reconsideration 5–6 (Dkt. 69).
C.

Yu’s Remaining Arguments Are Without Merit.
Yu contends the Court must exercise supplemental jurisdiction over his state law claims,

but in doing so he assumes that the Court is persuaded ISU waived its sovereign immunity
defense. Plf.’s Mem. ISO Mot. for Reconsideration 10–13 (Dkt. 68-1). Because the Court is not
persuaded ISU waived such defense, Yu’s state-law claims remain dismissed and the Court need
not consider whether to exercise supplemental jurisdiction over them.
Finally, Yu alleges ISU has failed to comply with its discovery obligations and he
suggests he “must be allowed to further amend his present amended complaint by naming
defendants in either their individual or official capacities based on discovery still to be received
from the Defendant.” Id. at 13–14. Those issues are not in front of the Court based on the present
motion, and will not be considered here.

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RECONSIDERATION – 9

IV. CONCLUSION
Yu has not shown a proper basis for reconsidering the Court’s order granting ISU partial
summary judgment. The Duffin MDO he cites does not constitute an intervening change in the
law. Even if it did, the facts in Duffin are inapposite here. Reconsideration is not necessary in this
instance to prevent manifest injustice.
V. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s Motion for
Reconsideration of Court’s Order Re Plaintiff’s Second Through Eighteenth Causes of Action
(Dkt. 68) is DENIED.

DATED: April 30, 2018

________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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