UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ GREGORY HARRIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-0622 (GK) ) DISTRICT OF COLUMBIA, ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION
This matter is before the Court on Plaintiff’s Motion for
Reconsideration. Upon consideration of the Motion, Opposition,
Reply, and the entire record herein, and for the reasons stated
below, Plaintiff’s Motion for Reconsideration is denied and
Plaintiff’s Request for Leave to Amend the Complaint is granted.
I. BACKGROUND
This lawsuit arises from Plaintiff’s arrest at the Community
Development Institute (“CDI”) Head Start School on April 7, 2008.
See Harris v. District of Columbia, 696 F.Supp.2d 123, 126-27
(D.D.C. 2010). At the time, Plaintiff was on duty as a duly-
commissioned Special Police Officer for the District of Columbia,
and was in possession of a firearm which he believed he was
authorized to carry. Id. Plaintiff was nevertheless arrested and
charged with “Carrying a Pistol Without a License [Outside Home or
Place of Business], in violation of 22 D.C. Code § 4504(a) (2001
ed.).” Id. The United States Attorney’s Office subsequently dropped
the charge on June 16, 2008. Id. Unbeknownst to this Court, Robert Ord, Plaintiff’s employer,
filed a lawsuit against the District of Columbia on April 24, 2008.
Pl.’s Mot. for Recons. ¶ 30, at 5. Ord alleged deprivation of a
liberty interest under 42 U.S.C. § 1983 and common law claims of
malicious prosecution and intentional infliction of emotional
distress, all arising from the same April 7, 2008 incident. See Ord
v. District of Columbia, 573 F.Supp.2d 88, 91 (D.D.C. 2008). Judge
John D. Bates dismissed Ord’s suit on August 29, 2008 for lack of
Article III standing. Id. at 95-96. On December 4, 2009, the Court
of Appeals for the District of Columbia reversed the dismissal of
Ord’s case, concluding that Ord had “standing to bring his
preenforcement claim.” Ord v. District of Columbia, 587 F.3d 1136,
1143 (D.C. Cir. 2009).
On April 3, 2009, Plaintiff filed his own suit against the
District of Columbia based on the April 7, 2008 incident. Plaintiff
filed his lawsuit approximately eleven months after Ord filed his
suit and approximately seven months after Judge Bates dismissed
Ord’s claims. Plaintiff’s Complaint contained seven counts:
deprivation of liberty under the Fourth Amendment, when Plaintiff
was arrested without probable cause during a warrantless search
(Count I); deprivation of a property interest, under the Fifth
Amendment, when his property was seized and never returned (Count
II); malicious prosecution of the Plaintiff initiated by Sgt. Moye
(Count III); deprivation of a property interest when he was denied
-2- the right to work as a Special Police Officer (Count IV);
deprivation of a liberty interest, under the Eighth Amendment
(Count V), excessive force employed during the search (Count VI);
and intentional infliction of emotional distress (Count VII).
Harris, 696 F.Supp.2d at 127.
When filing this suit, Plaintiff’s counsel filled out the
required Civil Cover Sheet [Dkt. No. 1-1]. As it appears on the
docket, this Civil Cover Sheet contains in the section asking the
filer to designate Related Cases a crossed-out “X” in the box for
“Yes” and a clearly legible and circled “X” in the box marked “No.”
The docket does not contain the “related case form,” which must be
filled out when the “Yes” box is marked. Plaintiff now contends
that counsel properly marked “Yes” in the Related Case Section when
submitting the Civil Cover Sheet to the Clerk and that counsel
filled out the necessary related case form. Pl.’s Mot. for Recons.
¶ 37, at 6. According to Plaintiff, “the related case designation
was crossed out by an unknown person” and “the related case form
was apparently never entered into the docket.” Id. ¶ 38, at 6.
Since the docket contained no record of the related case form
and the Civil Cover Sheet appeared to be marked “No” rather than
“Yes” in the Related Case section, this case proceeded separately
from Ord. Indeed, at no point until Plaintiff filed the present
Motion for Reconsideration did Plaintiff move to consolidate the
cases or provide notice in any way to the Court that Ord’s case may
-3- have been related. This Court dismissed all seven counts of
Plaintiff’s Complaint on March 22, 2010. Harris, 696 F.Supp.2d at
138. Eight days later, on March 30, 2010, the District of Columbia
produced documents in Ord, which was then on remand from the Court
of Appeals. Pl.’s Mot. for Recons. ¶ 46, at 8.
Subsequently, on April 16, 2010, Plaintiff filed this Motion
for Reconsideration of the March 22, 2010 dismissal [Dkt. No. 33].
On May 7, 2010, Defendant filed its Opposition [Dkt. No. 35]. On
May 18, 2010, Plaintiff filed his Reply [Dkt. No. 36].
II. STANDARD OF REVIEW
A motion for reconsideration should be granted only if the
court “finds that there is an intervening change of controlling
law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.” Firestone v. Firestone,
76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal citations and
quotations omitted). A motion for reconsideration is not “a vehicle
for presenting theories or arguments that could have been advanced
earlier.” Jones v. Bernanke, 538 F.Supp.2d 53, 60 (D.D.C. 2008)
(citing Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C.
Cir. 1993)); see also Harrison v. Federal Bureau of Prisons, 681
F.Supp.2d 76, 84 (D.D.C. 2010). In other words, the moving party
must show “new facts or clear errors of law which compel the court
to change its prior position.” Nat’l Ctr. for Mfg. Sciences v.
-4- Dep't of Def., 199 F.3d 507, 511 (D.C. Cir. 2000) (internal
citation omitted).
III. ANALYSIS
Plaintiff states that he “does not assert that there is any
‘newly discovered evidence’ herein.” Pl.’s Reply 5. Rather,
Plaintiff argues that this “Court has made distinct errors of law
and violated its own Local Rules of procedure” and that “[j]ustice
requires that this Court bring its rulings into harmony with
another case properly designated as ‘related’ which has already
reached review by the D.C. Circuit.” Pl.’s Mot. for Recons. 8-9.
Specifically, Plaintiff argues (1) that his common law claims
should not have been dismissed for failure to provide notice under
D.C. Code § 12-309 because designation of Ord as a related case
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ GREGORY HARRIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-0622 (GK) ) DISTRICT OF COLUMBIA, ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION
This matter is before the Court on Plaintiff’s Motion for
Reconsideration. Upon consideration of the Motion, Opposition,
Reply, and the entire record herein, and for the reasons stated
below, Plaintiff’s Motion for Reconsideration is denied and
Plaintiff’s Request for Leave to Amend the Complaint is granted.
I. BACKGROUND
This lawsuit arises from Plaintiff’s arrest at the Community
Development Institute (“CDI”) Head Start School on April 7, 2008.
See Harris v. District of Columbia, 696 F.Supp.2d 123, 126-27
(D.D.C. 2010). At the time, Plaintiff was on duty as a duly-
commissioned Special Police Officer for the District of Columbia,
and was in possession of a firearm which he believed he was
authorized to carry. Id. Plaintiff was nevertheless arrested and
charged with “Carrying a Pistol Without a License [Outside Home or
Place of Business], in violation of 22 D.C. Code § 4504(a) (2001
ed.).” Id. The United States Attorney’s Office subsequently dropped
the charge on June 16, 2008. Id. Unbeknownst to this Court, Robert Ord, Plaintiff’s employer,
filed a lawsuit against the District of Columbia on April 24, 2008.
Pl.’s Mot. for Recons. ¶ 30, at 5. Ord alleged deprivation of a
liberty interest under 42 U.S.C. § 1983 and common law claims of
malicious prosecution and intentional infliction of emotional
distress, all arising from the same April 7, 2008 incident. See Ord
v. District of Columbia, 573 F.Supp.2d 88, 91 (D.D.C. 2008). Judge
John D. Bates dismissed Ord’s suit on August 29, 2008 for lack of
Article III standing. Id. at 95-96. On December 4, 2009, the Court
of Appeals for the District of Columbia reversed the dismissal of
Ord’s case, concluding that Ord had “standing to bring his
preenforcement claim.” Ord v. District of Columbia, 587 F.3d 1136,
1143 (D.C. Cir. 2009).
On April 3, 2009, Plaintiff filed his own suit against the
District of Columbia based on the April 7, 2008 incident. Plaintiff
filed his lawsuit approximately eleven months after Ord filed his
suit and approximately seven months after Judge Bates dismissed
Ord’s claims. Plaintiff’s Complaint contained seven counts:
deprivation of liberty under the Fourth Amendment, when Plaintiff
was arrested without probable cause during a warrantless search
(Count I); deprivation of a property interest, under the Fifth
Amendment, when his property was seized and never returned (Count
II); malicious prosecution of the Plaintiff initiated by Sgt. Moye
(Count III); deprivation of a property interest when he was denied
-2- the right to work as a Special Police Officer (Count IV);
deprivation of a liberty interest, under the Eighth Amendment
(Count V), excessive force employed during the search (Count VI);
and intentional infliction of emotional distress (Count VII).
Harris, 696 F.Supp.2d at 127.
When filing this suit, Plaintiff’s counsel filled out the
required Civil Cover Sheet [Dkt. No. 1-1]. As it appears on the
docket, this Civil Cover Sheet contains in the section asking the
filer to designate Related Cases a crossed-out “X” in the box for
“Yes” and a clearly legible and circled “X” in the box marked “No.”
The docket does not contain the “related case form,” which must be
filled out when the “Yes” box is marked. Plaintiff now contends
that counsel properly marked “Yes” in the Related Case Section when
submitting the Civil Cover Sheet to the Clerk and that counsel
filled out the necessary related case form. Pl.’s Mot. for Recons.
¶ 37, at 6. According to Plaintiff, “the related case designation
was crossed out by an unknown person” and “the related case form
was apparently never entered into the docket.” Id. ¶ 38, at 6.
Since the docket contained no record of the related case form
and the Civil Cover Sheet appeared to be marked “No” rather than
“Yes” in the Related Case section, this case proceeded separately
from Ord. Indeed, at no point until Plaintiff filed the present
Motion for Reconsideration did Plaintiff move to consolidate the
cases or provide notice in any way to the Court that Ord’s case may
-3- have been related. This Court dismissed all seven counts of
Plaintiff’s Complaint on March 22, 2010. Harris, 696 F.Supp.2d at
138. Eight days later, on March 30, 2010, the District of Columbia
produced documents in Ord, which was then on remand from the Court
of Appeals. Pl.’s Mot. for Recons. ¶ 46, at 8.
Subsequently, on April 16, 2010, Plaintiff filed this Motion
for Reconsideration of the March 22, 2010 dismissal [Dkt. No. 33].
On May 7, 2010, Defendant filed its Opposition [Dkt. No. 35]. On
May 18, 2010, Plaintiff filed his Reply [Dkt. No. 36].
II. STANDARD OF REVIEW
A motion for reconsideration should be granted only if the
court “finds that there is an intervening change of controlling
law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.” Firestone v. Firestone,
76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal citations and
quotations omitted). A motion for reconsideration is not “a vehicle
for presenting theories or arguments that could have been advanced
earlier.” Jones v. Bernanke, 538 F.Supp.2d 53, 60 (D.D.C. 2008)
(citing Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C.
Cir. 1993)); see also Harrison v. Federal Bureau of Prisons, 681
F.Supp.2d 76, 84 (D.D.C. 2010). In other words, the moving party
must show “new facts or clear errors of law which compel the court
to change its prior position.” Nat’l Ctr. for Mfg. Sciences v.
-4- Dep't of Def., 199 F.3d 507, 511 (D.C. Cir. 2000) (internal
citation omitted).
III. ANALYSIS
Plaintiff states that he “does not assert that there is any
‘newly discovered evidence’ herein.” Pl.’s Reply 5. Rather,
Plaintiff argues that this “Court has made distinct errors of law
and violated its own Local Rules of procedure” and that “[j]ustice
requires that this Court bring its rulings into harmony with
another case properly designated as ‘related’ which has already
reached review by the D.C. Circuit.” Pl.’s Mot. for Recons. 8-9.
Specifically, Plaintiff argues (1) that his common law claims
should not have been dismissed for failure to provide notice under
D.C. Code § 12-309 because designation of Ord as a related case
provided the requisite notice and (2) that the findings in Ord
require reversal of this Court’s order of dismissal.
A. Plaintiff’s Motion for Reconsideration of Common Law Claims Is Dismissed
Plaintiff’s common law claims (Counts III and VII) were
previously dismissed for failure to comply with D.C. Code § 12-
309's mandatory notice requirement for maintaining such claims
against the District of Columbia. Harris, 696 F.Supp.2d at 130. In
particular, Plaintiff did not adequately demonstrate that he gave
“sufficient information to Defendant to comply with § 12-309.” Id.
at 131.
-5- Plaintiff now argues that by virtue of the error by the
Clerk’s Office in crossing out Plaintiff’s designation of his case
as related to Ord, the Court has violated Local Rule 40.5, which
provides that related cases be heard by the same judge. Pl.’s Mot.
for Recons. 9. Plaintiff contends that, had the cases been properly
assigned as related, Defendant would have had the requisite notice
pursuant to § 12-309. Id. at 9-11.
Fortunately, it is not necessary to affix responsibility for
the crossing out of “Yes” and marking of “No” (and the alleged
disposal of the related case form) on the Civil Case Form. The law
in this Circuit is clear: a motion for reconsideration is not a
device for arguing theories that could have been advanced at an
earlier stage. Jones, 538 F.Supp.2d at 60 (citing Kattan, 995 F.2d
at 276). Plaintiff was clearly aware of Ord, which was filed
approximately eleven months prior to Harris, and at no time made
any motion to consolidate the cases or any other effort to inform
the Court of a supposed mistake by the Clerk’s Office, such as in
his opposition to Defendant’s Motion to Dismiss.1 Therefore,
Plaintiff’s Motion for Reconsideration as to Counts III and IV is
denied.
1 Plaintiff’s silence is particularly curious in light of the fact that his lawyer is the same lawyer representing Mr. Ord. The Court also notes that the factual representations Plaintiff’s counsel makes in his Motion for Reconsideration were not made under oath, subject to the penalty of perjury.
-6- B. Plaintiff’s Motion for Reconsideration of § 1983 Claims Is Denied
Plaintiff’s remaining claims (Counts I, II, IV, V, and VI)
were dismissed, among other reasons, for failure “to allege an
unconstitutional custom, practice, or policy, which is required to
establish a claim against a municipality.” Harris, 696 F.Supp.2d at
128. Plaintiff argues that this conclusion is “in conflict with the
Circuit Court’s findings regarding the same factual issues.”2 Pl.’s
Mot. for Recons. 11. Plaintiff argues that this Court’s March 22,
2010 Decision conflicts with the D.C. Circuit’s “finding” that “the
April 7, 2008 raid . . . was part of a larger scheme by District of
Columbia officials ‘to drive [Ord’s] company from the District of
Columbia.’” Id. (quoting Ord, 587 F.3d at 1141).
Plaintiff’s argument fails for two reasons. First, as
Plaintiff appears to recognize in his Motion, the Circuit Court
made no “controlling findings” as to any scheme by the District of
Columbia in Ord. Mot. for Recons. 8. Rather, the Circuit Court
accepted “‘as true all material allegations of the complaint’” for
the purposes of reviewing the District Court’s grant of a 12(b)(1)
motion. Ord, 587 F.3d at 1140 (quoting Warth v. Seldin, 422 U.S.
490, 501 (1975)). Whatever Ord may have pled in his lawsuit is
2 To the extent that the Plaintiff generally takes issue with the factual and legal conclusions of this Court’s March 22, 2010 Decision, he does not state “new facts or clear errors of law which compel the court to change its prior position.” Nat’l Ctr. for Mfg. Sciences, 199 F.3d at 511 (internal citation omitted).
-7- irrelevant to Harris’ failure to plead an unconstitutional custom,
practice, or policy in this lawsuit. Most assuredly, the Court of
Appeals made no factual findings and reached no legal conclusions
regarding the existence of an unconstitutional custom, practice, or
policy.
Second, Ord is entirely inapposite. Ord concerned whether the
plaintiff sufficiently pled Article III standing to move forward
with a preenforcement challenge. Ord 587 F.3d at 1140. In this
case, Plaintiff failed to allege the existence of an
unconstitutional custom, practice, or policy under § 1983.
Obviously, those are two very different issues. In sum, the holding
in Ord simply has no bearing on whether or not Harris made
sufficient allegations to survive a motion to dismiss under Monell
v. Dep’t of Soc. Servs. 436 U.S. 658, 691 (1978). Therefore,
Plaintiff’s Motion for Reconsideration as to Counts I, II, V, VI,
and VII is denied.
C. Plaintiff’s Request for Leave to Amend the Complaint Is Granted
Plaintiff also requests, albeit in a footnote, leave to amend
his Complaint. Pl.’s Mot. for Recons. 13 n. 9. Under Rule 15(a)(2),
leave to amend shall be freely given when justice so requires.
Caribbean Broad. Sys., Ltd. v. Cable & Wireless P.L.C., 148 F.3d
1080, 1083-85 (D.C. Cir. 1998). Although Plaintiff disavows
asserting any “newly discovered evidence,” he refers to documents
produced in Ord. Pl.’s Reply 5; Pl.’s Mot. for Recons. ¶ 46, at 8.
-8- Plaintiff argues that these documents call into question the facts
he alleged in his Complaint, but now, “based upon this one set of
documents, Harris can demonstrate both Monell liability and fully
satisfy his statutory notice requirements.” Pl.’s Mot. for Recons.
14. In light of the surfacing of these documents, Plaintiff’s
request for leave to amend the Complaint is granted.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for
Reconsideration is denied and Plaintiff’s Request for Leave to
Amend the Complaint is granted. An order shall issue with this
Memorandum Opinion.
/s/ December 21, 2010 Gladys Kessler U.S. District Judge
Copies to: attorneys on record via ECF
-9-