Free Objection - District Court of Arizona - Arizona

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

Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiffs, v. The City of Phoenix, et al, Defendants. NO. CV03-1892-PHX-ROS DEFENDANTS' OBJECTION TO RECONSIDERATION OF RULE 54(b) CERTIFICATION

Defendants request that the Court maintain its entry of final judgment regarding Mark August's claims. Final judgment regarding Mark August's claims will not prejudice his claims or those of Teresa August, nor would it result in duplicate appeals. Mark and Teresa's claims arise from unique facts and the legal theories upon which they are based do not require that any court revisit the same facts twice. Final judgment is proper under Rule 54(b) of the Federal Rules of Civil Procedure. I. BACKGROUND This case arises from the arrest of Teresa August and the detainment of Mark August. The events on which Mark August's claims are based occurred after those on which Mrs. August's claim is based. On September 20, 2006, this court granted summary judgment on Mark August's claims and subsequently entered final judgment

Case 2:03-cv-01892-ROS

Document 173

Filed 11/27/2006

Page 1 of 6

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

regarding the same. Mark's claims are based on separate facts than Mrs. August's claims and on a different legal theory. II. ARGUMENT A. Legal Standard. Certification under Rule 54(b) allows for entry of final judgment in cases involving multiple claims or multiple parties. Final judgment may be entered if there is an express determination that there is no just reason for delay. Fed. R. Civ. P. 54(b). Final judgment is appropriate if: (1) entry of final judgment would not result in unnecessary appellate review; (2) the claims on which judgment was entered were separate, distinct and independent of other claims; (3) appellate review of the finalized claims would not be mooted by future developments in the case; and (4) the nature of the claims is such that the courts would not have to make the same decision twice. MorrisonKnudson Company, Inc. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981). B. This Case Meets the Standards for Final Judgment Set Forth in Rule 54(b) and Morrison-Knudson. Although helpful, Morrison-Knudson findings are not strictly necessary. In Re Lindsay, 59 F.3d 942 (9th Cir. 1995), the Ninth Circuit accepted jurisdiction over an appeal despite the lack of specific Morrison-Knudson findings. 59 F.3d at 951. See also Alcan Aluminum Corporation v. Carlsberg Financial Corporation, 689 F.2d 815, 817 (9th Cir. 1982) (lack of Morrison-Knudson findings is not a jurisdictional defect and the district court did not abuse its discretion in entering final judgment). Furthermore, Mark August's claims meet all of the standards meriting entry of final judgment. 1. There is no just reason for delay.

Whether there is just reason for delay is left to the discretion of the district court. Purdy Mobile Homes Inc. v. Champion Home Builders Co., 594 F.2d 1313, 1316 (9th Cir. 1979). Neither Mark nor Mrs. August are prejudiced in any way by the

2

Case 2:03-cv-01892-ROS

Document 173

Filed 11/27/2006

Page 2 of 6

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

separation of their claims. In fact, the separation of the claims only serves to clarify matters at trial. Plaintiffs imply that if one action receives a large enough award the other will go away. Such a concern is not in the interests of justice but rather pecuniary interests, which are irrelevant to Rule 54(b) certification. Delay in the entry of judgment will serve neither Mark nor Mrs. August in protecting their rights. Therefore, judgment should be entered as to Mark August's claims so as to remove Mark from a trial in which he has no interest. 2. Entry of final judgment would not result in unnecessary appellate review.

Mark August has had judgment entered against him, he may now appeal if he so wishes. His claims have no bearing on those of his mother, Mrs. August, and a judgment for one does not effect the other. Therefore, there is no reason to believe that final judgment will cause unnecessary appellate review. The result of Mrs. August's trial should have no bearing on whether Mark decides to appeal. 3. The claims on which judgment was entered were separate, distinct and independent of other claims.

Courts are hesitant to enter final judgment when claims are based in the same set of facts. Wood v. GCC Bend, LLC, 422 F.3d 873, 881 (9th Cir. 2005). This is not the case here. The claims in this case arise out of a timeline of events, with each claim based on distinct facts that did not occur simultaneously. For Mrs. August to prove her claims for excessive force she must demonstrate that police used excessive force in effectuating her arrest, prior to Mark's arrival. Events occurring after her arrest have nothing to do with the success of her excessive force claim. By contrast, Mark must show that his detainment, upon his arrival after Mrs. August's arrest, was unlawful. Thus, there is no risk of any court revisiting the same set of dispositive facts in either case. The instant case is different from Wood v. GCC Bend, LLC, 422 F.3d 873 (9th Cir. 2005) on which Plaintiff relies. In that case an employee brought an action
3

Case 2:03-cv-01892-ROS

Document 173

Filed 11/27/2006

Page 3 of 6

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

against her employer for age discrimination and constructive discharge. The district court granted summary judgment on her constructive discharge claims, but not on the discrimination claims. The district court then certified the judgment under Rule 54(b) as to all claims based on constructive discharge. The Ninth Circuit then held that the constructive discharge issue should not be immediately appealable, reversed the certification and remanded the case. The court of appeals reasoned that all the claims were based in the same set of facts. 422 F.3d at 879. The court clarified this position stating: We do not mean to suggest that claims with overlapping facts are foreclosed from being separate for purposes of Rule 54(b). Id. at 881. In the instant case, the facts from which the claims arise are a chain of events and a clear line can be drawn separating the facts from which Mark's claims arise and those from which Mrs. August's claims arise. No court need revisit the facts crucial to one claim in order the rule on the other. 4. Appellate review of the finalized claims would not be mooted by future developments in the case.

In order to avoid having finalized claims mooted by developments at trial courts only grant final judgment if claims are based in theories that require proof of separate and distinct elements. Purdy Mobile Homes Inc. v. Champion Home Builders Co., 594 F.2d 1313 (9th Cir. 1979) is on point. In that case a mobile home dealer sued a manufacturer alleging violations of three federal statutes and various state laws. The district court ruled that plaintiffs failed to state a claim under the federal statutes and granted partial summary judgment and entered final judgment under FED. R. CIV. P. 54(b). 594 F.2d at 1315. The Ninth Circuit affirmed the entry of final judgment, holding that plaintiff would have to do more than show that some of the facts were common to all of its theories of recovery to overturn the entry of final judgment. It held that the district
4

Case 2:03-cv-01892-ROS

Document 173

Filed 11/27/2006

Page 4 of 6

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

court properly entered a Rule 54(b) judgment because the facts needed to prove one claim were insufficient to prove the other. Id. at 1316. This is analogous to this case. Defendants must prove entirely separate facts to establish each of their claims. Therefore developments at trial will not moot the entry of final judgment. 5. The nature of the claims is such that the courts would not make the same decision twice.

In the instant case, both the facts and theories of the claims are different. The facts from which Mark August's claims arise are distinct from those which Mrs. August's claims are based. For example, Mark August's claims do not depend on the arrest of Mrs. August. His detention was justified by different facts. Since the claims are discrete in both time and theory, entry of final judgment would not require the courts to make the same decision twice. A comparison of this case to CMAX v. Drewry Photocolor Corp., 295 F.2d 695 (9th Cir. 1961) illustrates when courts would be required to make the same decision twice. In that case plaintiff brought an action, in two counts, to recover unpaid charges from defendant. The claims sought to recover the same debt on different legal theories. The court granted partial summary judgment for the defendant as to one count and entered judgment. Plaintiff appealed, believing that the judgment was entered under Rule 54(b). The Ninth Circuit denied the appeal, ruling that for the purpose of Rule 54(b) "claims" refers to the set of facts from which a claim arises rather than the legal theory. The premature entry of final judgment meant that the Ninth Circuit might be required to make a decision on the same exact facts twice. 295 F.2d at 697. III. CONCLUSION. For the reasons stated above Defendants respectfully request that the court confirm its entry of partial final judgment under Rule 54(b).

5

Case 2:03-cv-01892-ROS

Document 173

Filed 11/27/2006

Page 5 of 6

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

DATED this 27th day of November, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By /s/ Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendant The City of Phoenix, et al Electronically filed and served this 27th day of November, 2006, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003

BY /s/ Peggy Sue Trakes
1711407.2

6

Case 2:03-cv-01892-ROS

Document 173

Filed 11/27/2006

Page 6 of 6