El Papel LLC v. Inslee

• Court: District Court, W.D. Washington
• Decided: January 8, 2021
• Docket: 2:20-cv-01323
• Status: Unknown

Opinion

1 HONORABLE RICHARD A. JONES

8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE

10 EL PAPEL LLC, et al., 11 Plaintiffs, Case No. 2:20-cv-01323-RAJ-JRC 12 v. ORDER ADOPTING REPORT 13 AND RECOMMENDATION JAY INSLEE, et al.,

14 Defendants. 15 16 I. INTRODUCTION 17 This matter comes before the Court on the objections to the Report and 18 Recommendation of the Honorable J. Richard Creatura, United States Magistrate Judge. 19 Dkt. ## 65, 69-70. Having carefully reviewed the Report and Recommendation, Dkt. 20 # 63, the objections and responses to that, and the remaining record, the Court ADOPTS 21 the Report and Recommendation and DENIES Plaintiffs’ Motion for Preliminary 22 Injunction. Dkt. # 16. 23 II. DISCUSSION 24 The underlying facts of this matter have been amply addressed in the Report and 25 Recommendation (“Report”), and the Court need not repeat them here. 26 A district court must “make a de novo determination of those portions of the report 27 1 to which objection is made,” and “may accept, reject, or modify, in whole or in part, the 2 findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see 3 also Fed. R. Civ. P. 72. After the Report and Recommendation was issued, all parties 4 objected. Dkt. ## 65, 69-70. The Court reviews each objection in turn. 5 A. Defendants’ Objections 6 i. City Defendants 7 Defendants City of Seattle and Jenny A. Durkan object to the Report. They ask 8 the Court to correct two imprecise characterizations. Dkt. # 65. The Court will indeed 9 take this opportunity to clarify. 10 First, the Report opens by casting the City’s eviction measures as one moratorium. 11 Dkt. # 63 at 1. Really, however, there are three measures, not all of which are moratoria: 12 the City of Seattle’s residential eviction moratorium; the City’s additional six-month 13 eviction defense; and the City’s rent repayment plan requirement. Dkt. # 27 at 7-8. This 14 distinction does not affect the substance of the Report. Yet the Court will clarify here 15 that the Report’s reference to “moratoria” refers to these three measures collectively, 16 unless the context suggests otherwise. 17 Second, the Report elsewhere refers to the City’s six-month eviction defense as a 18 “moratorium.” Dkt. # 63 at 6 (“The second key protection is a six-month extension of the 19 eviction moratorium.”). Other times, however, the Report correctly refers to it as a “six- 20 month defense.” Id. at 21. Again, this does not affect the substance of the Report, but 21 the Court will clarify that the six-month defense is not, strictly speaking, a moratorium. 22 ii. Defendant Governor Jay Inslee 23 Defendant Inslee similarly asks the Court to correct an inaccuracy. The Report 24 states that Washington State Governor Jay Inslee’s moratorium” is in place “for the 25 duration of the COVID-19 health crisis.” Dkt. # 63 at 1. But at the time the Report was 26 issued the moratorium was in fact set to expire on December 31, 2020. Dkt. # 52-1 at 5. 27 Since then, the moratorium was recently extended and now expires on March 31, 2021. 1 Dkt. # 74-1 at 5. The Court provides this clarification accordingly. 2 The Court need not address Defendant Inslee’s other objections. Dkt. # 70. He 3 makes those objections to preserve arguments, which the Court duly notes. But the 4 objections do not affect the Report’s recommended disposition. 5 B. Plaintiffs’ Objections 6 Plaintiffs El Papel, LLC, Berman 2, LLC, and Karvell Li also object to the Report. 7 Dkt. # 69. Their objections are global, contesting nearly every one of the Report’s 8 conclusions. Because the Court finds that nearly all objections are merely a rehash of 9 arguments already raised and decided upon by the Magistrate Judge, the Court will not 10 address each objection here. See Shiplet v. Veneman, 620 F. Supp. 2d 1203, 1206 (D. 11 Mont. 2009), aff’d, 383 F. App’x 667 (9th Cir. 2010). 12 That said, the Court notes that Plaintiffs would like to introduce new evidence that 13 was not before the Magistrate Judge when he issued the Report. Dkt. # 69 at 4. 14 Specifically, Plaintiffs would like to update the Court on the status of Plaintiff El Papel, 15 LLC (“El Papel”) and its holdover tenants. Id. They would also like to introduce a new 16 declaration from an employee of Plaintiffs’ counsel, a member of their “Strategic 17 Research Team.” Id. at 7; Dkt. # 66. Plaintiffs offer the declaration to undermine the 18 Report’s conclusion that the City reasonably found most evicted tenants become 19 homeless. Dkt. # 63 at 21. 20 When evidence is presented for the first time in a party’s objection to a magistrate 21 judge’s recommendation, the Court need not consider it. United States v. Howell, 231 22 F.3d 615, 621-23 (9th Cir. 2000). What evidence the Court receives is in its discretion. 23 Id. The Court uses its discretion and will not consider Plaintiffs’ new declaration. Dkt. 24 # 66. The Court agrees with Defendant Inslee: “Plaintiffs do not say why they waited 25 until now to submit this rebuttal evidence—prepared by their own counsel’s employee— 26 rather than with their initial Motion, Reply, or separate response to the amici briefs.” 27 Dkt. # 73 at 5. The issue of whether the eviction measures are reasonable and appropriate 1 has been front and center from the start. Plaintiffs offer no reason why this information is 2 only being shared now. Thus, the Court ignores it. 3 That said, the Court will use its discretion to consider Plaintiffs’ new evidence 4 concerning El Papel and its holdover tenants. The new evidence, it appears, was not 5 available until recently. 6 According to Plaintiffs, El Papel would like to take the rental property in question 7 off the market. Dkt. # 69 at 4. Once its tenants vacate the premises, El Papel would like 8 to repair the property and then allow its governors, Mark Travers and Michele Ruess, to 9 occupy the property. Dkt. # 67. El Papel has also provided some evidence suggesting 10 that an unauthorized occupant may have also resided at the rental property. Dkt. # 68. 11 This evidence, Plaintiffs say, makes injunctive relief appropriate for Plaintiffs’ 12 takings claim. Dkt. # 69 at 9-10. According to them, “just compensation” is 13 inappropriate because it is difficult to calculate what the “squatter” owes and because the 14 eviction measures interfere with El Papel’s right to repossess and reoccupy the property. 15 Dkt. # 69 at 9-10. 16 But these issues are no more. Defendant Inslee’s new evidence reveals that the 17 holdover tenants have vacated the property. Dkt. # 75 ¶ 12; Dkt. # 76 ¶ 11. This leaves 18 El Papel free to rent the property, or permit the governors to occupy it, as it wishes. And 19 it appears that the “squatter” was a houseguest who was herself evicted and who stayed at 20 the rental property intermittently. Dkt. # 75 ¶ 10; Dkt. # 76 ¶ 9. The last time the guest 21 stayed at the property was in early- or mid-December. Dkt. # 75 ¶ 10; Dkt. # 76 ¶ 9. At 22 this juncture, the Court need not hold that all of El Papel’s claims are now moot and that 23 it should be dismissed from the case accordingly. Dkt. # 73 at 5. It is enough to say here 24 that, to the extent Plaintiffs’ objections rely on this new evidence, the objections are 25 moot. 26 III. CONCLUSION 27 For the reasons stated above, the Court finds and ORDERS: 1 (1) Subject to the clarifications in Section II.A above, the Court ADOPTS the 2 Report and Recommendation (# 63); 3 (2) Plaintiff’s Motion for Preliminary Injunction (Dkt. # 16) is DENIED. 4 (3) All claims against Defendant Inslee are dismissed. 5 (4) The Clerk is directed to send copies of this Order to the parties and to 6 Magistrate Judge Creatura. 7 DATED this 8th day of January, 2021. 8 A 9

10 The Honorable Richard A. Jones 11 United States District Judge 12

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