Charles Allen, et al vs Gregory Damm, et al
Filing
354
ORDER Denying 325 Motion for Reconsideration. Signed by Judge David A. Ezra on 11/13/12. (Copies have been distributed pursuant to the NEF - MMM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
CHARLES ALLEN, et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
UNITED STATES OF AMERICA, )
et al.,
)
)
Defendants.
)
_____________________________ )
CV. NO. 03-01358-DAE-RJJ
ORDER DENYING ROBERT KAHRE’S MOTION FOR RECONSIDERATION
Pursuant to Nevada Local Rule 78-2, the Court finds this matter
suitable for disposition without a hearing. After reviewing the Motion for
Reconsideration filed by Plaintiff Robert Kahre (“Kahre”), and the supporting and
opposing memoranda, the Court DENIES Plaintiff’s Motion (doc. # 325).
BACKGROUND
I.
Factual Allegations
Plaintiffs are a group of individuals boycotting the Federal Reserve
System by using gold and silver coins manufactured by the United States Mint as a
medium of exchange and “thereby avoiding income taxes imposed due to the
1
exchange rate between gold and silver dollars and Federal Reserve Notes
denominated as if they were dollars.” (“Pro Order,” Doc. # 56 at 2.) Plaintiffs
have filed suit against a variety of defendants for alleged constitutional violations.
Plaintiffs originally named as defendants the United States of America, two of its
executive subdivisions—the United States Department of Justice (“DOJ”) and the
Internal Revenue Service (“IRS”)—as well as several individuals who work for the
federal government. (Id.) The Complaint also originally named high ranking
officials in the DOJ and IRS, federal strike force/SWAT team members, and North
Las Vegas Police Department officers as defendants. (Id.)
After several years of litigation, many of Plaintiffs’ claims have been
disposed of. One of the remaining claims is based on the allegedly unlawful arrest
of Kahre on May 29, 2003 at the Bank of the West (“Bank”) in Henderson,
Nevada. (See “SAC,” Doc. # 104 ¶ 456.) Plaintiffs allege that IRS Agent Jared
Halper (“Halper”) arrested him pursuant to a state bench warrant even though
Halper was unauthorized to do so as an IRS agent. According to Plaintiffs, Kahre
went to the Bank on that day for a prearranged meeting with a customer service
manager to exchange two checks amounting to $230,913.00 for Federal Reserve
Notes. (See SAC ¶ 455.) Plaintiffs allege that when Kahre completed his
transaction, he was approached by a group of law enforcement officers claiming to
2
be FBI and IRS agents. (Id. ¶ 456.) One of them allegedly told Kahre “I am IRS
Special Agent Jared Halper.” (Id.) The group of agents proceeded to remove
Kahre's shoulder bag, place him in handcuffs, and inform him of a Nevada state
bench warrant for his arrest. (Id. ¶¶ 456–459.) Plaintiffs allege that two purported
FBI agents then put Kahre in a police car and drove him to a Walmart parking lot,
where the FBI agents turned Kahre over to a Las Vegas Metropolitan Police
Department officer. (Id. ¶¶ 467–468.) Kahre was arrested pursuant to a bench
warrant obtained from Judge Mark Denton of the District Court for Clark County,
Nevada. (“First Halper Decl.,” Doc. # 22 ¶ 22.)
II.
Procedural History
On October 30, 2003, Plaintiffs filed their first complaint seeking
injunctive relief against the United States and damages against unknown individual
federal employees and State of Nevada employees pursuant to Bivens v. Six
Unknown Fed. Narcotics Agents (“Bivens”), 403 U.S. 388 (1971) and 42 U.S.C.
§ 1983 as well as Nevada state law. (Doc. # 1.) On February 18, 2004, the Federal
Defendants filed Motions to Dismiss pursuant to Federal Rules of Civil Procedure
12(b)(1) and (6) or, in the alternative, for Summary Judgment (“2004 Motions”).
(Docs. ## 20–21.) On October 4, 2004, United States District Judge Philip M. Pro
granted in part and denied in part Defendants’ 2004 Motions. (Pro Order.) In his
3
Order, Judge Pro found that Halper was not entitled to qualified immunity on
Kahre's unlawful arrest claim because he “exceeded his authority in arresting
Kahre pursuant to a state bench warrant unrelated to internal revenue laws.” (Id. at
20.) In reaching this conclusion, Judge Pro noted that while FBI agents would be
authorized to execute the arrest warrant for Kahre, IRS agents are not so
authorized. (Id.)
On August 12, 2004, Plaintiffs filed their First Amended Complaint.
(Doc. # 53.) On April 5, 2005, a federal grand jury returned an indictment against
the majority of the Plaintiffs for charges relating to tax evasion. (Cr.
2:05–cr–00121–RCJ–RJJ, Doc. # 1.) On July 12, 2005, the Court stayed discovery
proceedings pending resolution of the criminal cases against eleven of the
Plaintiffs in the instant action. (Doc. # 99.) On November 14, 2005, Plaintiffs
filed a Second Amended Complaint (“SAC”). (Doc. # 104.) On August 29, 2006,
the Court refused to grant leave for Plaintiffs to file a third amended complaint.
(Doc. # 154.) On February 23, 2007, Plaintiff Robert Kahre commenced another
lawsuit against many of the same Defendants in the instant case, alleging numerous
4
Racketeer Influenced and Corrupt Organizations (RICO) violations.1 (See Cv.
2:07–cv–00231–DAE–RJJ.)
In 2009, three of the remaining Plaintiffs were adjudged guilty in their
criminal cases. (See Cr. 2:05–cr–00121–RCJ–RJJ.) Specifically, John Kahre
pleaded guilty to five counts of willfully attempting to evade and defeat tax (see
Cr. 2:05–cr–00121–RCJ–RJJ, Docs. ## 605, 2614); Robert Kahre was found guilty
of multiple counts of conspiracy to defraud, willfully failing to collect and pay
over tax, attempting to interfere with the administration of the Internal Revenue
law, attempting to evade and defeat tax, and wire fraud (see Cr.
2:05–cr–00121–RCJ–RJJ, Docs. ## 1671, 2615); and Lori Kahre was found guilty
of multiple counts of conspiracy to defraud, attempting to interfere with the
administration of the Internal Revenue law, making a false statement to a bank and
attempting to evade and defeat tax (see Cr. 2:05–cr–00121–RCJ–RJJ, Docs.
## 1671, 2623).
The Court sua sponte lifted the stay in these proceedings on
September 7, 2010. (Doc. # 225.) On November 15, 2010, the Federal Defendants
filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. (Doc.
1
This Court ultimately dismissed the myriad claims in that suit,
(Cv.2:07–cv–00231–DAE–RJJ, Doc. # 95), and was affirmed on appeal by the
Ninth Circuit (Cv. 2:07–cv–00231–DAE RJJ, Doc. # 107).
5
# 254.) In their July 25, 2011 reply brief, the Federal Defendants argued that they
were entitled to summary judgment because regardless of whether Halper
participated in the arrest, it is undisputed that at least one FBI agent with the
authority to arrest Kahre also participated in the arrest. (Doc. # 299.) In its
September 2, 2011 Order, the Court declined to address this issue because it was
raised for the first time in a reply brief but noted that the Federal Defendants were
free to raise the argument in a subsequent Motion for Summary Judgment. (Doc.
# 300 at 26 n.4.)
Pursuant to the Court's Order, the Federal Defendants filed a Motion
for Partial Summary Judgment as to Kahre's wrongful arrest claim on September
29, 2011. (“MSJ,” Doc. # 301.) On October 17, 2011, Plaintiff Kahre filed a
Memorandum in Opposition to the Motion. (“Opp. to MSJ,” Doc. # 303.) On
October 27, 2011, the Federal Defendants filed a Reply in further support of their
Motion. (Doc. # 307.) On October 31, 2011, Plaintiffs Lori Kahre and Lee
Belcher filed a Joinder in the Opposition. (Doc. # 308.) On April 24, 2012, after a
hearing on the Motion,2 the Court issued an Order Granting Defendants’ Motion
for Partial Summary Judgment. (“Order,” Doc. # 319.)
2
No counsel appeared at the hearing on behalf of Plaintiff Kahre.
6
On May 25, 2012, Plaintiff Kahre filed a Motion for Reconsideration
of this Court’s April 24, 2012 Order. (“Mot. for Recon.,” Doc. # 325.) On May
30, 2012, the Federal Defendants filed a Memorandum in Opposition to the Motion
for Reconsideration. (“Opp. to Recon.,” Doc. # 326.) On June 5, 2012, Plaintiff
Kahre filed a Reply in further support of his motion. (“Reply,” Doc. # 330.)
STANDARDS OF REVIEW
The disposition of a motion for reconsideration is within the discretion
of the district court. Navajo Nation v. Confederated Tribes & Bands of the Yakima
Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003); Plotkin v. Pac. Tel. & Tel.
Co., 688 F.2d 1291, 1292 (9th Cir. 1982). This rule derives from the compelling
interest in the finality of judgments, which should not be lightly disregarded.
Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983).
Motions for reconsideration are brought pursuant to Federal Rules of
Civil Procedure 59(e) or 60(b). A motion for reconsideration under Rule 59(e)
should not be granted, absent highly unusual circumstances, unless the district
court is (1) presented with newly discovered evidence, (2) committed clear error,
or (3) if there is an intervening change in the controlling law. 389 Orange Street
Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citation omitted). Mere
disagreement with a previous order is an insufficient basis for reconsideration.
7
Haw. Stevedores, Inc. v. HT & T Co., 363 F. Supp. 2d 1253, 1269 (D. Haw. 2005).
In addition, a Rule 59(e) 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.” Kona Enters., Inc. v. Estate of Bishop, 229
F.3d 877, 890 (9th Cir. 2000) (citation omitted).
Under Federal Rule of Civil Procedure 60(b), a court may grant
reconsideration on the grounds of “mistake, inadvertence, surprise, or excusable
neglect,” fraud, or newly discovered evidence. Fed. R. Civ. P. 60(b). A court may
correct its own error of law under Rule 60(b). Kingvision Pay-Per-View Ltd. v.
Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999); Liberty Mut. Ins. Co. v. EEOC,
692 F.2d 438, 441 (9th Cir. 1982) (“The law in this circuit is that errors of law are
cognizable under Rule 60(b).”).
DISCUSSION
Plaintiff seeks reconsideration of this Court’s April 24, 2012 Order
Granting Defendants’ Motion for Partial Summary Judgment under Rule 59(e) and
Rule 60. The Court notes that Plaintiff’s Motion for Reconsideration was filed
more than 28 days after judgment was entered, and is therefore untimely under
8
Rule 59(e).3 Fed. R. Civ. P. 59(e) (“A motion to alter or amend a judgment must
be filed no later than 28 days after the entry of the judgment.”). The Court will
treat the motion as one brought under Rule 60(b) for relief from a judgment or
order.
Kahre’s unlawful arrest claim was initially premised upon the
argument that the agents who arrested him had neither probable cause nor a
warrant authorizing his arrest. (SAC ¶ 510(B).) Kahre later took the position that
his arrest was unlawful because it was effected by Halper, who as an IRS agent
lacked the authority to execute a state warrant. (Doc. # 34 at 32.) In their Motion
for Partial Summary Judgment, Defendants argued that they are entitled to
summary judgment as to Kahre’s wrongful arrest claim because the facts establish
that at least one FBI agent participated in Kahre’s arrest. (MSJ at 2.) According to
Defendants, it is immaterial whether Agent Halper participated in Kahre’s May 29,
2003 arrest because the participation of at least one FBI agent makes the arrest
valid as a matter of law. (Id. at 4.) Plaintiff contends that an FBI agent’s
participation in his arrest would not render the arrest lawful (Opp. to MSJ at
3
The Order was filed on April 24, 2012, so a Rule 59(e) motion would have
been timely if filed by May 22, 2012. Plaintiff’s Motion for Reconsideration was
filed on May 25, 2012.
9
19–21), and in any event Defendants have not established that FBI agents were
present (id. at 11–12).
Under Nevada law, FBI agents are authorized to execute state arrest
warrants “for public offenses.” See Nev. Rev. Stat. § 171.1245(5). Although
Nevada does not define the term “public offenses,” Black’s Law Dictionary defines
“public offense” as “an act or omission forbidden by law.” Black’s Law
Dictionary 1188 (9th ed. 2009). In this case, Judge Denton issued a bench warrant
for Plaintiff’s arrest as a result of his failure to appear on December 9, 2002 as
directed in an Order to Show Cause issued by the District Court for Clark County,
Nevada. Failure to appear is an act forbidden by law, i.e., a public offense.
Accordingly, FBI agents were authorized to execute the state arrest warrant for
Plaintiff. Thus, the question the Court confronted in its April 24, 2012 Order was
whether Halper’s alleged participation in Plaintiff’s arrest rendered an otherwise
valid arrest unlawful.
In its April 24, 2012 Order, the Court described the applicable law as
follows:
In evaluating whether it is proper for officers to bring a third party to
the execution of an arrest warrant, the U.S. Supreme Court has
considered whether the third party's purpose is to help further the
execution of the warrant. See, e.g., Wilson v. Layne, 526 U.S. 603,
611–12 (1999) (noting that courts have long approved of the presence
of a third party to help police identify stolen property, but holding that
10
“it is a violation of the Fourth Amendment for police to bring
members of the media or other third parties into a home during the
execution of a warrant when the presence of the third parties in the
home was not in aid of the execution of the warrant”). Courts have
also considered whether a third party is supervised or accompanied by
an officer who is authorized to carry out the warrant. See, e.g.,
Santoni v. Potter, 369 F.3d 594, 601 (1st Cir. 2004) (finding that a
postal inspector lawfully participated in an arrest, despite lacking
authority under state law to execute state arrest warrants, because the
arrest was carried out under the lawful authority of a sheriff). In
Santoni, the court noted that “it would be elevating form over
substance to conclude that the validity of the arrest depended on
which of the two men uttered the words ‘You are under arrest,’ or
placed the Plaintiff in handcuffs.” 369 F.3d at 600–01.
(Order at 12–13.)
The Court found that the undisputed facts established that FBI agents
participated in Kahre’s arrest. (Id. at 15.) It further found that Halper’s purpose in
being present at Kahre’s arrest was to help execute the warrant. (Id.) Thus, the
Court concluded that Halper’s presence did not invalidate an otherwise lawful
arrest,4 and Halper was not liable as to Plaintiff’s wrongful arrest claim. (Id. at
15–16.)
4
In his Motion for Reconsideration, Plaintiff mischaracterizes the Court’s
holding. He claims that the Court took the position that the unlawfulness of
Plaintiff’s arrest by Halper was purged by the presence of FBI agents. (Mot. for
Recon. at 9.) On the contrary, the Court found that the lawfulness of Plaintiff’s
arrest by FBI agents was not rendered unlawful by the participation of Halper, a
third party. (Order at 15–16.)
11
In the instant Motion, Plaintiff argues that the Court erred in granting
summary judgment because the record reflects a genuine issue of material fact as to
the presence of FBI agents at his arrest. Plaintiff also asserts that the Court erred
as a matter of law in finding that the participation of an FBI agent rendered his
arrest lawful. Finally, Plaintiff maintains that the Court’s refusal to grant his
request for more time to conduct discovery was clearly erroneous.
I.
Genuine Issue of Material Fact
Summary judgment is properly granted under Federal Rule of Civil
Procedure 56 when “the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c);
see also Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005); Addisu v.
Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The party moving for
summary judgment must identify for the court those “portions of the materials on
file that it believes demonstrate the absence of any genuine issue of material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir.
1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
Once the moving party has carried its burden of production, the
nonmoving party “must set forth specific facts showing that there is a genuine
12
issue for trial.” Porter, 419 F.3d at 891 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256 (1986)). The Ninth Circuit has “refused to find a ‘genuine
issue’ where the only evidence presented is ‘uncorroborated and self-serving’
testimony.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.
2002) (citing Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)).
“Conclusory allegations unsupported by factual data cannot defeat summary
judgment.” Rivera v. Nat'l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir.
2003). When “direct evidence” produced by the moving party conflicts with
“direct evidence” produced by the party opposing summary judgment, “the judge
must assume the truth of the evidence set forth by the nonmoving party with
respect to that fact.” T.W. Elec. Serv., 809 F.2d at 631. In other words, evidence
and inferences must be construed in the light most favorable to the nonmoving
party. Porter, 419 F.3d at 891.
In its April 24, 2012 Order, the Court concluded that summary
judgment in Defendants’ favor was appropriate, finding that “[t]he undisputed facts
establish that at least one FBI agent participated in Kahre’s arrest.” (Order at 13.)
The Court based this finding upon a declaration submitted by former FBI Special
Agent Richard L. Beasley (“Beasley”) in which Beasley stated that he participated
in the arrest of Robert Kahre at the Bank on May 29, 2003, including helping to
13
handcuff Kahre. (“Beasley Decl.,” Doc. # 301-3.) Beasley stated that FBI Special
Agent Larry Wenko was present at the arrest as well. (Beasley Decl. ¶ 3.) The
Court also based its conclusion on statements made by Plaintiff himself in the
SAC, in a declaration filed with the Court, and in other related proceedings.
(Order at 13–14.) Based on these statements, the Court concluded that Plaintiff
had “repeatedly admitted that FBI agents participated in his arrest.” (Order at 13.)
Kahre argues that the Court was incorrect to base its ruling on the
“undisputed” presence of an FBI agent at Kahre’s arrest when “[i]n fact, the
presence of an FBI agent was squarely disputed.” (Mot. for Recon. at 6.) As a
preliminary matter, the Court notes that to the extent Plaintiff appears to believe
that the very fact that he disputes whether an FBI agent was present suffices to
defeat Defendants’ Motion for Summary Judgment, he is mistaken. It is not
enough for Plaintiff to dispute the presence of an FBI agent; conclusory allegations
and self-serving testimony do not demonstrate the existence of a genuine issue of
material fact.
However, Plaintiff’s objection to the Court’s finding that he
“repeatedly admitted that FBI agents participated in his arrest” (Order at 13) has
merit. The Court relied upon the following when it reached that conclusion:
Plaintiff’s statement in the SAC and in his RICO complaint that he was handcuffed
14
by “five men who claimed they were FBI and IRS agents” (SAC ¶ 456; Cv. No.
07-00231 DAE-RJJ, Doc. # 1 ¶ 441); Plaintiff’s statement in a declaration filed
with the Court that one of the agents who approached him at the Bank “identified
himself as FBI but did not state his name” (“Kahre Decl.,” Doc. # 39 at 6); and
Plaintiff’s reference to “the events surrounding his illegal arrest by Halper and
other IRS and FBI officers on May 29, 2003” in another proceeding (Cr. No. 0500121 DAE-RJJ, Doc. # 2117 ¶ 5). The first two statements acknowledge only
that persons claiming to be FBI agents participated in Plaintiff’s arrest. The third
is followed by direct quotes culled from Plaintiff’s complaint, which indicate only
that individuals claiming to be FBI agents were present at his arrest. Thus,
Plaintiff has consistently maintained not that FBI agents were involved in his
arrest, but that persons who identified themselves as FBI agents were involved in
his arrest. The distinction is subtle, but the Court concludes that Plaintiff’s former
statements do not demonstrate the “undisputed” presence of FBI agents at
Plaintiff’s arrest.
The Court did not, however, rely on Plaintiff’s former statements
alone. The Court also considered the declaration of Agent Beasley when it
concluded that Defendants had established that there was no genuine issue as to any
material fact. Agent Beasley declared under penalty of perjury that, in the exercise
15
of his official duties as an FBI Special Agent, he participated in Kahre’s arrest on
May 29, 2003, including helping to handcuff Kahre. (Beasley Decl. ¶ 3.) Beasley
also declared that FBI Special Agent Larry Wenko was present at Kahre’s arrest.
(Id.) Plaintiff objects to the Court’s reliance on the Beasley declaration for two
reasons.
First, Plaintiff asserts that Agent Beasley’s declaration was
inadmissible for purposes of Defendants’ Motion for Summary Judgment. (Mot.
for Recon. at 8.) This argument is without merit. Federal Rule of Civil Procedure
56 provides that a declaration used to support or oppose a motion for summary
judgment must be based on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant is competent to testify on the
matters stated. Fed. R. Civ. P. 56(c)(4); Block v. City of L.A., 253 F.3d 410, 419
(9th Cir. 2001). Beasley’s declaration appears adequate under Rule 56 and is
plainly based upon personal knowledge, Plaintiff’s allegations to the contrary
notwithstanding. “Unfounded speculation as to [a declarant’s] alleged lack of
personal knowledge of the events in his [declaration] does not render it
inadmissible.” Nevada Dept. of Corrections v. Greene, 648 F.3d 1014, 1019 (9th
Cir. 2011).
16
Second, Kahre questions the veracity of Beasley’s statements.
According to Plaintiff, “Mr. Beasley could be lying, and discovery is needed to
determine the precise contours of his alleged presence at the arrest.” (Mot. for
Recon. at 7–8.) General and unsupported attacks on the credibility of Defendant’s
evidence do not establish the existence of a triable issue of fact. See Crawford-El v.
Britton, 523 U.S. 574, 600 (1998) (“[I]f the [defendant] has made a properly
supported motion, the plaintiff may not respond simply with general attacks upon
the defendant's credibility, but rather must identify affirmative evidence from which
a jury could find that the plaintiff has carried his or her burden. . . .”); Far Out
Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001) (“A party opposing
summary judgment may not simply question the credibility of the movant to
foreclose summary judgment. Instead, the non-moving party must . . . by its own
evidence set forth specific facts showing that there is a genuine issue for trial.”)
(internal quotation marks and citation omitted). Plaintiff does not supply any
affirmative evidence that controverts Agent Beasley’s sworn declaration,5 and
5
Kahre points to the Declaration of Arrest sworn out by Las Vegas
Metropolitan Police Department Officer Aiken (“Aiken”) on May 29, 2003 and
statements made by the Nevada Employment Security Division as direct evidence
contradicting the evidence produced by Defendants. (Mot. for Recon. at 9–10.) In
the Declaration of Arrest, Aiken stated that he was assisting IRS agents when he
came into contact with Robert Kahre and took him into custody on May 29, 2003.
(Doc. # 39 at 28.) Similarly, in a Motion to Obtain Access to Seized Property, the
17
Plaintiff’s own description of his arrest is consistent with Agent Beasley’s account.
Kahre has, after all, consistently maintained that individuals identifying themselves
as FBI agents participated in his arrest, and has even acknowledged that someone
other than Halper handcuffed him. (Doc. # 34 at 32 (“That Halper did not
physically place the cuffs on Kahre is beside the point.”).) Plaintiff’s baseless claim
that Beasley is lying fails to convince the Court of the existence of any genuine
issue of triable fact.
Plaintiff also argues that the Court erred in concluding that the
presence of an FBI agent was dispositive. Plaintiff maintains that even if FBI
agents were present at and participated in his arrest, his arrest was still unlawful.
This argument is based on Kahre’s reading of Santoni v. Potter, 369 F.3d 594 (1st
Cir. 2004), a case cited to by Defendants in their Motion for Summary Judgment
and by the Court in its April 24, 2012 Order. According to Kahre, Santoni stands
for the proposition that, when a third party helps to effect an arrest pursuant to an
Nevada Employment Security Division stated that IRS agents arrested Kahre.
(Doc. # 39 at 36.) The Court noted in its April 24, 2012 Order that these
statements merely indicate that IRS agents were involved in Kahre’s arrest; they in
no way suggest that IRS agents were the only federal agents and officers involved.
(Order at 14 n.4.) Plaintiff himself acknowledges that “these facts are not
dispositive on the question of whether FBI agents were actually present.” (Mot.
for Recon. at 10.) Construed in the light most favorable to Plaintiff, the statements
fail to raise a triable issue as to whether any FBI agents participated in Kahre’s
arrest.
18
arrest warrant, the arrest is lawful only if the third party is accompanied by an
individual who is aware of the existence of the warrant and not only authorized but
required to execute it. Thus, Plaintiff maintains that “[i]f Mr. Beasley or any other
FBI agent was not aware of the arrest warrant, did not see the arrest warrant before
the arrest, was not legally obligated to execute it (as opposed to being merely
‘authorized’ to do so), and / or became aware of it after the arrest, Santoni does not
purge the unlawful arrest.” (Mot. for Recon. at 9.)
This argument reflects a misunderstanding of the holding in Santoni.
In Santoni, a federal postal inspector, accompanied by a state deputy sheriff,
arrested the plaintiff for indecent conduct pursuant to a state arrest warrant. 369
F.3d at 597. The First Circuit concluded that the arrest was lawful despite the
participation of the federal postal inspector, who was not authorized to execute a
state arrest warrant, because it was carried out under the lawful authority of the
sheriff. Id. at 600–01. The court pointed out that the sheriff was not only
authorized under state law to arrest the plaintiff, he was required to execute all
outstanding arrest warrants of which he was aware. Id. at 601. The court’s
conclusion that the arrest was lawful did not, however, depend upon a finding that
the sheriff had a duty to execute the state arrest warrant. It was based upon the fact
that the sheriff was authorized to arrest the plaintiff. See id. at 601–02 (“[The
19
sheriff] had valid authority to execute that warrant. Therefore, we agree with the
district court that Santoni’s arrest was lawful under Maine law and that it did not
constitute an unreasonable seizure under the Fourth Amendment.”). As for the
proposition that an arrest based upon a warrant is lawful only if the arresting
officer is aware of the warrant at the time of the arrest, the court in Santoni
expressly declined to rule on that issue because the plaintiff failed to argue it in the
lower court. Id. at 601. Santoni does not, therefore, support Kahre’s argument that
his arrest was lawful only if the FBI agents who participated were aware of the
state warrant’s existence and legally obligated to execute it.
The Court concludes that the participation of an FBI agent in Kahre’s
arrest is, in fact, dispositive. Furthermore, it again finds that Defendants have
carried their burden under Rule 56, and Plaintiff has failed to set forth any facts or
produce any evidence that tends to establish the existence of a triable issue of fact.
II.
Opportunity to Conduct Discovery
Kahre claims that the Court’s grant of summary judgment was
premature because he has not had an opportunity to conduct discovery. He argues
that the “the Court’s Order should be withdrawn and further discovery permitted
. . . in light of the fact that to date, [he] has been wholly denied the ability to carry
out any adversary testing of the government’s witnesses by way of discovery.”
20
(Reply at 2.) According to Plaintiff, he needs discovery to “flesh out” whether an
FBI agent was actually present at his arrest (Mot. for Recon. at 7) or, alternatively,
to determine “whether Beasley and any other FBI agents present–assuming
Beasley is telling the truth–were even aware of the warrant at the time of the
arrest” (id. at 9).
The Court is aware that Kahre has not had an opportunity to conduct
discovery in this case. The case was stayed on July 12, 2005 pending resolution of
the related criminal proceedings. (Doc. # 99.) After the stay was lifted on
September 7, 2010 (doc. # 225), Plaintiff was unable to obtain counsel until March
2011 (doc. # 282), and since then has been occupied opposing a series of motions
for summary judgment filed by Defendants (docs. ## 254, 301). In its September
2, 2011 Order Granting in Part and Denying in Part Federal Defendants’ Motion
for Summary Judgment, this Court concluded that Plaintiff should be afforded the
opportunity to conduct some discovery before the Court granted summary
judgment. (Doc. # 300.) The Court noted that there was simply too great a paucity
of evidence to determine whether a genuine issue of material fact existed as to the
remaining claims. (Id. at 25.)
After the issuance of the September 2, 2011 Order, Defendants filed
another Motion for Partial Summary Judgment (doc. # 301), the granting of which
21
is the subject of the instant Motion for Reconsideration. Unlike Defendants’ first
Motion for Summary Judgment (doc. # 254), which was supported only with “selfserving declarations and affidavits” (doc. # 300 at 25), the Motion for Partial
Summary Judgment (doc. # 301) was supported by Agent Beasley’s declaration.
In Plaintiff’s Opposition to Defendants’ Motion for Partial Summary Judgment, he
requested additional time to conduct discovery pursuant to Federal Rule of Civil
Procedure 56(d). (Opp. to MSJ at 13–14.)
Under Rule 56(d), if a party opposing summary judgment
demonstrates to the Court that it cannot present facts essential to justify its
opposition, the Court may defer consideration of the motion; deny the motion;
allow additional time to conduct discovery; or issue any other appropriate order.
Fed. R. Civ. P. 56(d). A party requesting a continuance, denial, or other order
under Rule 56(d) must demonstrate: “(1) it has set forth in affidavit form the
specific facts it hopes to elicit from further discovery; (2) the facts sought exist;
and (3) the sought-after facts are essential to oppose summary judgment.” Family
Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th
Cir. 2008) (citing California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998)).
“The burden is on the party seeking additional discovery to proffer sufficient facts
to show that the evidence sought exists, and that it would prevent summary
22
judgment.” Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir.
2001).
The Court concludes, as it did in its April 24, 2012 Order, that
Plaintiff has failed to satisfy the requirements of Rule 56(d). Plaintiff has failed to
set forth (in affidavit or any other form) specific facts he hopes to elicit from
further discovery. His Opposition to Defendants’ Motion for Summary Judgment
stated only that he is “of the belief that deposition testimony, as well as a thorough
review of policies and procedures of the governmental entities involved in the
complained of conduct, as well as expert reports, and clearly established case law,
will establish that [his] constitutional rights were violated by the federal
defendants.” (Opp. to MSJ at 13.) In the instant Motion for Reconsideration,
Plaintiff is equally vague, claiming, for example, that he must “flesh out” the
evidence. (Mot. for Recon. at 7.) The only specific fact Plaintiff states that he
hopes to elicit is whether the FBI agents present at his arrest were aware of the
state arrest warrant. (Id. at 9.) However, as the Court noted above, the FBI agents’
awareness of the existence of the state arrest warrant is not relevant to Plaintiff’s
claim.
Plaintiff has also failed to convince the Court that any facts exist that
would prevent summary judgment as to his unlawful arrest claim. The only
evidence that would suffice is evidence that Agent Beasley is lying about having
23
participated in Kahre’s arrest along with Agent Wenko. This Court will not
countenance a fishing expedition. See Painsolvers, Inc. v. State Farm Mut. Auto.
Ins. Co., 732 F. Supp. 2d 1107, 1125 (D. Haw. 2010) (“Rule [56(d)] is not a license
for a fishing expedition in the hopes that [a party] might find facts to support its
claims.”). There is absolutely no indication that Agent Beasley’s declaration is
false. In fact, as the Court previously noted, Agent Beasley’s account of Kahre’s
arrest is entirely consistent with Kahre’s own version of events. The Court will not
reverse its Order granting summary judgment so that Kahre can attempt to prove
his baseless claim that Agent Beasley committed perjury.
The Court recognizes that when “a summary judgment motion is filed
. . . early in the litigation, before a party has had any realistic opportunity to pursue
discovery relating to its theory of the case, district courts should grant any [Rule
56(d)] motion fairly freely.” Burlington N. Santa Fe Ry. Co. v. Assiniboine &
Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003). In
fact, “[a]lthough [Rule 56(d)] facially gives judges the discretion to disallow
discovery when the non-moving party cannot yet submit evidence supporting its
opposition, the Supreme Court has restated the rule as requiring, rather than merely
permitting, discovery ‘where the nonmoving party has not had the opportunity to
discover information that is essential to its opposition.’” Metabolife Intern., Inc. v.
24
Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 n.5 (1986)). However, in a case such as this one, where no
amount of discovery would preclude summary judgment, the Court need not
authorize a futile search. See, e.g., Michelman v. Lincoln Nat’l Life Ins. Co., 685
F.3d 887, 892 (9th Cir. 2012) (“A district court abuses its discretion only if the
party requesting a continuance [to conduct discovery] can show that allowing
additional discovery would have precluded summary judgment.”).
Plaintiff also contends that he did not have an opportunity to
“ventilate” the issues prior to the Court’s grant of summary judgment on his claim.
(Opp. to MSJ at 12 (quoting Norse v. City of Santa Cruz, 629 F.3d 966, 973–73
(9th Cir. 2010)).) In support of this argument, Plaintiff points to Ninth Circuit
cases that guarantee a non-moving party a “full and fair opportunity to ventilate the
issues” prior to a grant of summary judgment to the moving party. Greene v.
Solano Cnty. Jail, 513 F.3d 982, 990 (9th Cir. 2008) (quoting Cool Fuel, Inc. v.
Connett, 685 F.2d 309, 312 (9th Cir. 1982)). These cases are inapposite; they do
not apply to parties in Plaintiff’s position. Rather, they stand for the proposition
that a district court may not sua sponte grant summary judgment on a claim
without first giving the losing party notice and an opportunity to present evidence,
unless the losing party has already had a “full and fair opportunity to ventilate the
25
issues involved in the motion.” United States v. Grayson, 879 F.2d 620, 625 (9th
Cir. 1989) (quoting Waterbury v. T.G.&Y. Stores Co., 820 F.2d 1479, 1480 (9th
Cir. 1987)).
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Motion for
Reconsideration. (Doc. # 325.)
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 13, 2012.
____________________________________
David Alan Ezra
United States District Judge
Charles Allen, et al. v. United States of America, et al., Cv. No. 03-01358 DAERJJ; ORDER DENYING ROBERT KAHRE’S MOTION FOR
RECONSIDERATION
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