Free Motion for Reconsideration - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA ) Case No. CV03-1892 PHX ROS ) ) ) PLAINTIFFS' MOTION TO ) RECONSIDER RULE 54(b) ) CERTIFICATION ) Plaintiffs, ) ) (Oral Argument Requested) vs. ) CITY OF PHOENIX, a body politic of the State ) (Expedited Hearing Requested) of Arizona; OFFICER LYLE MONSON and ) JANE DOE MONSON, husband and wife; ) OFFICER NICHOLAS LYNDE and JANE DOE ) LYNDE, husband and wife; OFFICER TOBY ) DUNN and JANE DOE DUNN, husband and ) wife; OFFICER T. HEDGECOKE and JANE ) DOE HEDGECOKE, husband and wife; and R. ) GRIFFIN and JANE DOE GRIFFIN, husband ) ) and wife ) Defendants. ) ____________________________________ ) Plaintiffs move the Court to reconsider entry of its order of judgment against Plaintiff TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Mark August, and to stay the entering of final judgment until the entire action is completed.

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Final judgment regarding only one Plaintiff, Mark August, is not warranted in this matter. The entry of final judgment under Rule 54(b), Federal Rules of Civil Procedure, permits a party to pursue its appeal even though the entire action is not complete. Piecemeal appeals are disfavored, so Rule 54(b) certification is not appropriate unless it serves the interest of justice

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or judicial efficiency to permit a party to seek appellate review before the entire litigation is
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resolved. Plaintiffs believe that piecemeal appeal is improper and inappropriate in this case, and did not request final judgment. Defendants did not move the Court for Rule 54(b)

certification; they merely submitted a notice of lodging of form of judgment on October 10, 20061 that included the language from Rule 54(b), without any supporting authority or justification. Plaintiff Mark August's claims are factually intertwined with Plaintiff Teresa

August's claims, both arising from the continuum of actions by Defendants during the same brief time frame and at the same location. RESPECTFULLY SUBMITTED this 31st day of October, 2006. TREON & SHOOK, P.L.L.C.

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By:

s/ Kelly Jo Daniel B. Treon Kelly Jo Attorney for Plaintiffs

MEMORANDUM

I.
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TERESA AND MARK AUGUST'S CLAIMS ARE INTERTWINED "Dad! The police are beating on Grandma! Come quick! Come quick! Hurry!" Nine

year-old Dakotah August called his father Mark August's cell phone and cried these words pleading for his father to come home and help, terrified at what he had just seen police do to his grandmother, Teresa August. Minutes earlier Dakotah had seen four police officers rush into the atrium of his home and instantly grab his grandmother, "T" her up and handcuff her, causing her to shriek in pain at the ensuing gross dislocation of her right elbow.

The notice of lodging of form of judgment filed on October 9, 2006 did not include the actual form of judgment as an exhibit, which was then filed the following day.

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Importantly, the force of the dislocation was strong enough to cause an "avulsion" of
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the elbow's lateral collateral ligament, which is when bone fragments are ripped from the arm bone where the ligament attaches, much like a clump of dirt is ripped from the earth when pulling weeds. After arriving at the "scene of the crime," Mark August demanded Sam Hickey, Mark August's mentally troubled young nephew (and Teresa August's grandson), whose confrontation with Teresa August prompted the police visit in the first place, explain what was happening. Eventually, the officers' aggression toward Teresa August spilled over to Mark August, and they arrested Mark August without warning. He was arrested without incident or

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physical injury and released shortly thereafter. While Mark August was initially charged with
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failure to obey an officer's order, the charge was later dropped. Although Teresa August was still physically present when Mark August arrived and was subsequently arrested, she was in shock and pain from her injury and cannot provide any significant information regarding Mark August's arrest. The primary events at issue, from the time officers arrived in response to Teresa August's 9-1-1 call to report the out-of-control behavior of Sam Hickey until Mark August's arrest, only took about a half an hour. II. PROCEDURAL BACKGROUND On April 15, 2005, Defendants' filed their Motion for Summary Judgment on all claims.

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The Court ruled on Defendants' Motion for Summary Judgment on September 20, 2006 and,
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inter alia, denied the motion as to Teresa August's claims for excessive force, but granted it as to her claim of false arrest. The Court granted the Motion as to Mark August's claim of wrongful arrest. On October 4, 2006, Defendants prematurely submitted their Bill of Costs even though the Court had not entered final Judgment pursuant to Rule 54(b), Federal Rules of Civil

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Procedure (Rule 54 implies that a judgment be entered before a bill of costs is submitted).
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On October 10, 2006, Defendants filed a proposed judgment that included the language for Rule 54(b) certification, signed by the Court on October 11, 2006. In the absence of any specific findings of the Court or motion by Defendants, it is not entirely clear that the Court intended to certify the partial judgment for appeal. III. LEGAL ARGUMENT A. The Purpose of Rule 54(b) is to Permit a Party to Appeal Judgment While Additional Parties or Claims Remain Before the District Court and to Promote Judicial Efficiency

At this point, Mark August does not want to appeal, but Defendants' use of Rule 54(b)
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certification may well force him to pursue an appeal for defensive reasons. Defendants are
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using Rule 54(b) certification as an offensive tool to force Mark August to file an appeal, and to force Plaintiffs' counsel to expend limited resources in working on an appeal while Teresa August's claims continue in the trial court with a fast-approaching trial date. As shown below, Rule 54(b) should not be used for these improper strategic purposes. Rule 54(b), Federal Rules of Civil Procedure provides: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all the parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and abilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. The purpose of the Rule is to certify that portion of the case for appeal, so that the losing party does not have to wait for the entire case to resolve before the right to appeal is

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moot. Sears Roebuck and Co. v. Mackey, 351 U.S. 427, 433-34, 76 S.Ct. 895, 898099
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(1956). Rule 54(b) certification is the exception, not the rule: Judgments under Rule 54(b) must be reserved for the unusual case in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by pressing needs of the litigants for an early and separate judgment as to some claims or parties. Morrison-Knudsen Co., Inc. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981) (district court erred in ordering separate judgment). See also Hogan v. Consolidated Rail Corp., 961 F.2d 1021 (2nd Cir. 1992) (Rule 54(b) certification abuse of discretion absent unusual hardship or injustice). The Rule is intended as a shield against injustice to the losing party and to protect the interest of judicial efficiency, and was never intended to be used as a sword to "divide and conquer" by a prevailing party. B. The Court Needs to Make Specific Findings to Support the Final Judgment

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The Court, sua sponte, and without any opportunity for hearing or any explanation of its specific findings, entered final judgment on Mark August's claims. The lack of specific findings contravenes the common law in the Ninth Circuit. Quoting Morrison-Knudsen at 965, the Ninth Circuit continues to require "specific findings setting forth the reasons for its

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[Rule 54(b)] order." In Re Lindsay, 59 F.3d 942, 951 (9th Cir. 1995) (also citing the dissent in
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Cadillac Fairview/California, Inc. v. United States, 41 F.3d 562, 567 (9th Cir. 1994) (bankruptcy judge should have stricken Rule 54(b) language from orders). But see Alcan Aluminum Corp. v. Carlsberg Financial Corp., 689 F.2d 815 (9th Cir. 1982) (MorrisonKnudsen findings would have been helpful, but not necessary based on briefs and record).

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Other courts agree with Morrison-Knudsen and In Re Lindsay. The First Circuit held that the
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specific findings of the district court: serves a two-fold purpose: it helps the district judge to sort out and weigh the competing considerations in his own mind, and it permits the appellate court effectively to review the ruling. Spiegel v. Trustees of Tufts College, 843 F.2d 38, 43 (1st Cir. 1988) (Rule 54(b) certification improvidently granted). Given the complete lack of discussion regarding the bases for a Rule 54(b) certification, it is not clear that the Court intended to grant Mark August the right to appeal at this point in the litigation. As the following analysis

demonstrates, the competing considerations militate against the Rule 54(b) certification.
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C.
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Justice is Not Served by Rule 54(b) Certification

Plaintiff Mark August will not experience "any immediate hardship or injustice" justifying a Rule 54(b) certification. Sure-Safe Industries, Inc. v. C & R Pier Mfg., 851

F.Supp. 1469, 1475 (S.D. Cal. 1993) (denying plaintiffs' request for Rule 54(b) certification). Defendants, all of whom are still litigating claims made by Teresa August, also will not suffer any "immediate hardship or injustice" by a lack of Rule 54(b) certification. Therefore, justice is not a consideration for the Rule 54(b) certification. D. Judicial Efficiency is Not Served by Rule 54(b) Certification

The underlying facts in this case arise from a relatively brief, uninterrupted sequence
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of events, the main thrust of which begin with the arrival of Defendants at Plaintiff Teresa
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August's home and end with the severe injury and arrest of Teresa August and the arrest of Plaintiff Mark August. In addition to the relatedness of the facts, the theories of liability for the Plaintiffs are similar. Plaintiffs filed their complaint jointly because of the nexus of facts underlying their claims.

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Although the interrelatedness of the claims and overlapping of facts is not dispositive
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of the rule 54(b) certification issue, they compel the need for even stronger reasons to create the potential for piecemeal appeals: The greater the overlap [of facts] the greater the chance that this court will have to revisit the same facts ­ spun only slightly differently ­ in a successive appeal. The caseload of this court is already huge. More than fifteen thousand appeals were filed in the last year. We cannot afford the luxury of reviewing the same set of facts in a routine case more than once without a seriously important reason. Wood v. GCC Bend, LLC, 422 F.3d 873, 882 (9th Cir. 2005). In Wood, the plaintiff filed numerous state and federal claims related to age discrimination, constructive discharge, and retaliation, and after granting partial summary judgment to the defendant, the court granted plaintiff's motion for Rule 54(b) certification. Id. at 875. In finding the district court abused its discretion, the trial court pointed out: This is not a complicated case. It is a routine employment discrimination action.... It is also common for motions to be made for summary judgment, and to be granted in part and denied in part as district judges trim and prune a case to focus on what is really at issue for trial. At least in our experience, requesting ­ or granting a request for ­ certification in ordinary situations such as this is not routine. We believe it should not become so. As put by the Supreme Court, "[p]lainly, sound judicial administration does not require that Rule 54(b) requests be granted routinely." [quoting Curtiss-Wright Corp. v. General Electric Co., 446 U.S.1, 10, 100 S.Ct. 1460 (1980)]. Wood at 879. Although the experience was far from "routine" for Teresa and Mark August,

the claims and factual bases for the claims are the same type of claims as seen in Wood, a mixture of federal and state statutory claims and common law claims, and the claims dismissed on summary judgment lack the "seriously important reason" needed to justify the Rule 54(b) certification. In fact, the Court's Rule 54(b) certification guarantees an appeal by Plaintiff Mark

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August. Plaintiffs are mother and son, and the outcome on Teresa August's claims, either
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through settlement or trial, may end Mark August's willingness to pursue the appeal. Case 2:03-cv-01892-ROS

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However, to preserve his rights, Mark August's claim must now be appealed or lost as
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untimely. As a direct result of the Court's Rule 54(b) certification, the Court has ensured that some of the Court's finite resources will be expended on the pursuit of an appeal that, at a later date and after the completion of the remaining litigation, Mark August might chose not to file. Moreover, if the remaining claims proceed to trial, the possibility of a second appeal, involving many of the same factual issues, looms large. E. Rule 54(b) Certification Does Not Facilitate Settlement of the Remainder of the Claims

Another factor that the Court may consider in deciding whether to certify an order under Rule 54(b) is the facilitation of settlement of the remainder of the claims. This issue is particularly important when the appellate court might face the same issues on a subsequent appeal. See Curtiss-Wright Corp. at 9, n. 2, 100 S.Ct. at 1465 (citing Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 450 n.5, 87 S.Ct. 904, 907 (1956). The facilitation of settlement contemplated in Cold Metal Process was not some generalized

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pressure to settle, but the resolution of the appeal, according to counsel for both parties,
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"might even make it undesirable to try that [remaining] action, [a counterclaim by defendant]." Cold Metal Process at 450, 76 S.Ct. at 907. No such facilitation of settlement exists in this matter, as the resolution of Mark August's claims is not dispositive of Teresa August's claims. And given the deceptive manner in which Defendants attempted to foist on to Mark August costs incurred in defense of Teresa August's claim in Defendants' Bill of Costs, Defendants' pursuit of entry of judgment against Mark August could be seen as a cynical attempt to use it as leverage against his mother, Teresa August, to settle her claims "on the cheap" in order to save Mark August from such a large taxation of costs.

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IV.
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CONCLUSION

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The facts and legal theories in this relatively straightforward case do not support a
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Rule 54(b) certification, and no immediate hardship or injustice will result from reversing the order to certify the partial judgment as final. But the certification will ensure that Plaintiff Mark August will file an appeal. Plaintiffs therefore respectfully request that the Court

reconsider its certification of judgment against Plaintiff Mark August pursuant to Rule 54(b), Federal Rules of Civil Procedure. RESPECTFULLY SUBMITTED this 31st day of October, 2006.

By:

s/ Kelly Jo Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on October 31, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

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Kathleen Wieneke:

Jennifer L. Holsman: Randall H. Warner:

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By:

s/ Aly Shomar-Esparza

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