Moore v. Garnand

Opinion

1 WO 2

7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9

10 Greg Moore, et al., No. CV-19-00290-TUC-RM (LAB) 11 Plaintiffs, ORDER 12 v. 13 Sean Garnand, et al., 14 Defendants. 15

16 Pending before the Court are Plaintiff’s Motion for Reconsideration (Doc. 120) 17 and Motion for Clarification (Doc. 134). Plaintiffs ask the Court to reconsider and clarify 18 its March 24, 2020 Order granting Defendants’ Motion to Assert the Law Enforcement 19 Investigatory Privilege (Doc. 113). For the following reasons, the Motion for 20 Reconsideration (Doc. 120) will be denied and the Motion for Clarification (Doc. 134) 21 will be granted in part and denied in part. 22 I. Background 23 Magistrate Judge Leslie A. Bowman issued an Order on December 13, 2019 24 granting Defendants’ Motion to Assert the Law Enforcement Investigatory Privilege and 25 denying Defendants’ Motion to Stay Discovery until resolution of their Motion for Partial 26 Summary Judgment on the issue of qualified immunity. (Doc. 74.) Plaintiffs appealed the 27 portion of that Order granting the Motion to Assert the Law Enforcement Investigatory 28 Privilege and filed an Objection. (Doc. 84.) Defendants responded to Plaintiff’s 1 Objection. (Docs. 92, 94.) On March 24, 2020, this Court issued a thirteen-page Order 2 affirming Magistrate Judge Bowman’s Order, granting Defendants’ Motion to Assert the 3 Law Enforcement Investigatory Privilege, and ordering Defendants to submit a detailed 4 report on the status of the criminal investigation into the Forgeus Apartment fires and a 5 predicted timeline for completion of the investigation to Magistrate Judge Leslie 6 Bowman for in camera review. (Docs. 113, 121.)1 Plaintiffs filed the instant Motion for 7 Reconsideration on April 2, 2020. (Doc. 120.) Defendants submitted the status report to 8 Judge Bowman on April 6, 2020. (Doc. 124.) The Court ordered Defendants to respond 9 to Plaintiff’s Motion for Reconsideration, with no reply allowed. (Doc. 123.) Plaintiffs 10 filed the instant Motion for Clarification on April 16, 2020. (Doc. 134.) Defendants filed 11 a Response to the Motion for Reconsideration on April 20, 2020. (Doc. 136.) Defendants 12 have not filed a Response to the Motion for Clarification and the time for doing so has 13 expired. LRCiv 7.2(c). 14 II. Plaintiffs’ Motion for Reconsideration 15 In their Motion for Reconsideration, Plaintiffs make three main arguments: (1) the 16 Court misapprehended the nature of Plaintiff’s claims and, in so doing, erroneously 17 concluded that Plaintiffs had not demonstrated how or why the discovery they seek is 18 relevant or reasonably calculated to lead to the discovery of admissible evidence (Doc. 19 120 at 2-3); (2) the Court erred in finding that collateral estoppel applied to bar the 20 discovery that Plaintiffs seek because (a) the Magistrate Judge did not reach the issue of 21 collateral estoppel and (b) the discovery matter before this Court was not sufficiently 22 similar to the state court action in which judgment was entered against Plaintiffs on the 23 issue of discoverability of the documents to warrant application of the collateral estoppel 24 doctrine (id. at 5-6); and (3) the Court erred in finding that disclosure of the documents 25 would result in substantial prejudice to Defendants because it is false that Plaintiffs knew 26 of the criminal investigation pertaining to them before initiating this lawsuit (id. at 7.)

27 1 The Court’s Order erroneously directed Defendants to submit the status report to Magistrate Judge Jacqueline Rateau. (Doc. 113.) The Order was amended (Doc. 121) to 28 reflect that the report be submitted to the Magistrate Judge assigned to the case, Magistrate Judge Leslie A. Bowman. 1 Defendants’ Response addresses each of these arguments. (Doc. 136.) First, 2 Defendants respond that the Court sufficiently considered the nature and extent of 3 Plaintiffs’ claims. (Id. at 2.) Defendants respond that, even insofar as the Court did not 4 address the Plaintiffs’ need or request for specific documents to the extent that Plaintiffs 5 would, in retrospect, have liked, it is irrelevant because Plaintiffs had not previously 6 shown in either their briefing or their objection “how discovery of the criminal 7 investigation documents is reasonably calculated to lead to the discovery of admissible 8 evidence and therefore have not shown that the documents they seek are within the scope 9 of discovery.” (Doc. 113 at 10, Doc. 136 at 2-4.) Defendants further point out that 10 Plaintiffs argue for the first time in their Motion for Reconsideration that the documents 11 they seek “may well hold crucial evidence” in support of their claims and that Plaintiffs 12 did not show why that argument could not have been raised and developed earlier. (Doc. 13 120 at 2-4; Doc. 136 at 5.) Indeed, Plaintiffs are in possession of hundreds of pages of 14 redacted City of Tucson law enforcement documents and had every opportunity to make 15 a case-specific showing of “substantial need” based on a review of those documents, yet 16 failed to do so. (Doc. 136 at 5-6); United States v. Hardrives, Inc., No. 17 CIV901656PHXRGSMM, 1991 WL 12008395, at *5 (D. Ariz. Feb. 4, 1991) (a party 18 seeking privileged documents must show a substantial need for the information and an 19 inability to obtain it by other means). 20 Second, Defendants respond that the Court did not err when it found that collateral 21 estoppel applies to bar Plaintiffs’ request for a second in camera review of the privileged 22 law enforcement materials. (Doc. 136 at 7-11.) Defendants contend that, as a matter of 23 law, the district court’s consideration of the collateral estoppel issue was proper because a 24 district court may affirm a Magistrate Judge’s decision based on a slightly different or 25 additional ground. (Id. at 9-10.) Defendants further contend that Plaintiffs 26 mischaracterize the collateral estoppel analysis in an effort to escape its preclusive effect 27 on their requests for discovery of the law enforcement investigation documents. (Id.) 28 Third, Defendants point out that Plaintiffs did, in fact, know of the criminal 1 investigation into them related to the Forgeus Apartment fires prior to initiating this 2 action, which is the second civil rights litigation commenced by Plaintiffs regarding this 3 matter. (Id. at 6-7.) 4 III. Standard of Review for Motion for Reconsideration 5 LRCiv 7.2(g) sets forth the standard under which a Court reviews a Motion for 6 Reconsideration. It states: 7 The Court will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest 8 error or a showing of new facts or legal authority that could 9 not have been brought to its attention earlier with reasonable diligence. Any such motion shall point out with specificity 10 the matters that the movant believes were overlooked or 11 misapprehended by the Court, any new matters being brought to the Court's attention for the first time and the reasons they 12 were not presented earlier, and any specific modifications 13 being sought in the Court's Order. No motion for reconsideration of an Order may repeat any oral or written 14 argument made by the movant in support of or in opposition to the motion that resulted in the Order. Failure to comply 15 with this subsection may be grounds for denial of the motion. 16 In the District of Arizona, motions for reconsideration will be granted when: 17 (1) There are material differences in fact or law from 18 that presented to the Court and, at the time of the Court's decision, the party moving for reconsideration could not have 19 known of the factual or legal differences through reasonable 20 diligence; (2) There are new material facts that happened after 21 the Court's decision; 22 (3) There has been a change in the law that was decided or enacted after the Court's decision; or 23 (4) The movant makes a convincing showing that the 24 Court failed to consider material facts that were presented to the Court before the Court's decision. 25 Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 586 (D. Ariz. 26 2003). “Reconsideration is indicated in the face of the existence of new evidence, an 27 intervening change in the law, or as necessary to prevent manifest injustice.” Navajo 28 Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 1041, 1 1046 (9th Cir. 2003). Whether to grant reconsideration is within the sound discretion of 2 the trial court. Id. A denial of a motion for reconsideration is reviewed for abuse of 3 discretion. Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000). 4 Plaintiffs’ Motion for Reconsideration does not raise new material facts or 5 evidence that happened after the Court’s decision, nor does it raise an intervening change 6 in law that would affect the Court’s decision. Plaintiffs also do not assert that any 7 “material differences in fact or law” brought forward in their Motion for Reconsideration 8 could not have been brought to the Court’s attention earlier with reasonable diligence. 9 Plaintiffs’ Motion for Reconsideration includes no discussion of the “reasonable 10 diligence” standard. Therefore, the Court finds that Plaintiffs’ Motion for 11 Reconsideration rests upon an underlying, though not explicitly stated, assertion of either 12 manifest error or manifest injustice, including the possibility that “the Court failed to 13 consider material facts that were presented to the Court before the Court's decision.” 14 Motorola, Inc., 215 F.R.D. at 586. As explained below, the Court is satisfied that its 15 Order (Doc. 113) was not the result of manifest error and did not result in manifest 16 injustice and that it sufficiently considered the material facts presented by Plaintiffs in 17 reaching its decision. 18 IV. Discussion of Motion for Reconsideration 19 First, the Court is satisfied that it sufficiently apprehended the nature of Plaintiffs’ 20 claims and their arguments set forth in the underlying briefing and objection (Docs. 25, 21 84) when it concluded that Plaintiffs had not demonstrated “how discovery of the 22 criminal investigation documents is reasonably calculated to lead to the discovery of 23 admissible evidence and therefore have not shown that the documents they seek are 24 within the scope of discovery.” (Doc. 113 at 10.) In their Motion for Reconsideration, 25 Plaintiffs argue that the documents may contain “crucial evidence” to support their 26 claims. (Doc. 120 at 2-4.) Yet nowhere in the briefing or objection upon which this Court 27 based its findings did Plaintiffs explain with specificity which documents may contain 28 “crucial evidence” or connect those documents to one or more of their civil rights claims. 1 (See Docs. 25, 84, 113.) That is why the Court determined that Plaintiffs had failed to 2 show how the discovery they sought was reasonably calculated to lead to the discovery of 3 admissible evidence. Plaintiffs misconstrue the Court’s findings when they assert that the 4 Court found that “nothing else in the City’s file is relevant.” (Doc. 120 at 3.) The Court 5 made no determination as to the relevancy of the contested documents; it found that 6 Plaintiffs had not demonstrated their relevancy or connection to their claims. Plaintiffs’ 7 Motion for Reconsideration attempts to remedy this oversight by providing a more 8 detailed explanation of their claims. (Doc. 120 at 2-4.) But as Plaintiffs have not shown 9 why these arguments could not have been brought to the Court’s attention earlier with 10 reasonable diligence, the Court may not use them as a basis to reconsider its Order. 11 LRCiv 7.2(g). Nor does Plaintiffs’ explanation convince the Court that it committed 12 manifest error when it concluded that the law enforcement privilege operates to bar 13 discovery, at this stage in the litigation, of the criminal investigation documents Plaintiffs 14 seek, regardless of their relevancy to Plaintiffs’ claims. (Doc. 113.) 15 Second, the Court is satisfied that, with respect to its findings on the collateral 16 estoppel issue, Plaintiffs have not made “a convincing showing that the Court failed to 17 consider material facts that were presented to the Court before the Court's decision” or 18 shown manifest error. “[M]anifest error of law is not merely a party's disagreement with 19 how the trial court applied the law. . . [n]or is manifest error demonstrated by the 20 disappointment of the losing party.” Teamsters Local 617 Pension & Welfare Funds v. 21 Apollo Grp., Inc., 282 F.R.D. 216, 231 (D. Ariz. 2012) (internal citations and quotations 22 omitted). Manifest error is “plain and indisputable” and “amounts to a complete disregard 23 of the controlling law or the credible evidence in the record.” Id. 24 Plaintiffs contend that “the Magistrate Judge did not reach the Defendants’ 25 argument on collateral estoppel.” (Doc. 120 at 5.) However, this does not preclude the 26 Court from reaching the issue of collateral estoppel, which was in the record. See Suzuki 27 v. Helicopter Consultants of Maui, Inc., 2016 WL 3753079, at *6 (D. Haw. July 8, 2016) 28 (“the district court may affirm the magistrate judge’s ultimate conclusion on a different 1 basis”) (citing United States v. Pope, 686 F.3d 1078, 1080 (9th Cir. 2012) (affirming the 2 district court decision where the district court affirmed the magistrate on “slightly 3 different grounds”)). Therefore, this argument does not provide a basis for 4 reconsideration. Plaintiffs further contend that “the issue decided in the state court cannot 5 be identical” because the state court decision did not balance the interests of Plaintiffs 6 against those of Defendants and because “Plaintiffs’ standing in the Superior Court 7 action, representing citizens of Arizona, has no parallel to their standing in this Court.” 8 (Doc. 120 at 6.) Plaintiffs cite no authority to support the contention that these elements 9 are essential elements of the collateral estoppel analysis or to show that the Court 10 committed manifest error by not considering them in its collateral estoppel analysis. (Id.; 11 see also Doc. 136 at 10-11); Teamsters, 282 F.R.D. at 231 (“manifest error of law is not 12 merely a party's disagreement with how the trial court applied the law”). 13 Finally, the Court is satisfied that it did not err in finding that Defendants would 14 suffer “substantial prejudice” were they required to disclose to Plaintiffs the law 15 enforcement documents concerning the ongoing investigation of the Forgeus Apartment 16 fire. (Doc. 113 at 11-12.) This conclusion is bolstered by the facts that Plaintiffs are 17 subjects of the ongoing investigation and that, notwithstanding Plaintiffs’ assertions to 18 the contrary, they knew of the investigation before initiating this action. (Id.; Doc. 120 at 19 7; Doc. 136 at 6-7.) In fact, Plaintiffs’ Motion for Reconsideration does not dispute that 20 they knew of the investigation before initiating this action, but instead attempts to 21 mislead the Court by stating that they “commenced the first civil rights litigation” before 22 they knew of the investigation. (Doc. 120 at 7.) The Court is aware that the instant matter 23 is the second, not the first, civil rights litigation based on the events giving rise to 24 Plaintiffs’ claims, and the apparent attempts to mislead the Court are not well-taken. See 25 Fed. R. Civ. P. 11(b). 26 Plaintiffs failed to carry their burden to demonstrate a substantial need for the 27 documents (id. at 10), and in balancing the Plaintiffs’ stated need for the privileged 28 documents against the prejudice to Defendants that would result from disclosure, the 1 Court is satisfied that it did not err in finding that the balance favored Defendants. (Id.); 2 see Hardrives, 1991 WL 12008395 at *2-3, 5 (application of the law enforcement 3 privilege must be balanced against the opposing party’s substantial need for the 4 documents and its inability to obtain them by other means); Torres v. Goddard, 2010 WL 5 3023272, at *8 (D. Ariz. July 30, 2010) (“The law enforcement investigatory privilege is 6 based on the harm to law enforcement efforts which might arise from public disclosure of 7 investigatory files.”) 8 V. Motion for Clarification 9 In a separate Motion for Clarification (Doc. 134), Plaintiffs move the Court to 10 clarify the portion of its Order in which it directed Defendants to submit “a detailed 11 report on the status of the criminal investigation into the Forgeus Apartment fires and a 12 predicted timeline for completion of the investigation to Magistrate Judge [Leslie 13 Bowman] for in camera review” (Doc. 113). Plaintiffs move the Court to address the 14 following questions: 15 (1) What obligation is there on the Magistrate Judge to assess the Defendants’ in camera report with the due process 16 constraints requiring a finite limit on the stay?2 17 (2) What obligation is there on the Magistrate Judge to report to this Court and report on the record, the length of time 18 Defendants project their investigations to go on and 19 whether that projection is reasonable and necessary in light of the absolute need to preserve evidence of the 20 Defendants’ actions going back three years? 21 (3) What right do the Plaintiffs have to know and, if necessary, oppose any finding of the Magistrate Judge that 22 the stay already burdening Plaintiffs be extended for any additional period of time? 23 (4) Will this Court, as the other cases have, give the 24 Defendants a deadline to conclude their investigations and bring charges against the Plaintiffs, or, if the Defendants 25 do not do so within that deadline, lift the stay so that 26 2 Plaintiffs characterize the application of the law enforcement privilege to the documents 27 they seek as a “stay.” While this characterization is not technically correct, as this case has not been stayed, the Court acknowledges that the application of the law enforcement 28 privilege effectively operates to prevent Plaintiffs from further litigating the discoverability of the documents they seek. 1 Plaintiffs’ due process rights are vindicated and their claims not damaged by the passage of time and loss of 2 evidence? 3 (Doc. 134 at 5-6.) 4 “Private litigants have certain rights and. . . the Department of Justice may not 5 retain documents indefinitely and keep them from disclosure on a statement that the 6 investigation is still continuing. There must be a reasonable terminus.” United States v. 7 Hardrives, Inc., 1991 WL 12008395, at *5 (D. Ariz. Feb. 4, 1991). “Of course the 8 District Court has a broad discretion in granting or denying stays so as to coordinate the 9 business of the court efficiently and sensibly. This discretion, however, may be abused by 10 a stay of indefinite duration in the absence of a pressing need.” McSurely v. McClellan, 11 426 F.2d 664, 671 (D.C. Cir. 1970) (internal quotations omitted). 12 The Court finds that, given the circumstances of this case, due process requires a 13 reasonable limitation on the length of Defendants’ criminal investigation into Plaintiffs’ 14 potential involvement in the Forgeus Apartment fires. While the integrity of the ongoing 15 criminal investigation constitutes a “pressing need” that justifies Plaintiffs’ lack of access 16 to the criminal investigation documents pursuant to the law enforcement investigatory 17 privilege (Doc. 113), Plaintiffs’ due process rights mandate that Defendants not extend 18 the length of the investigation indefinitely. As the facts underlying this civil litigation are 19 now more than three years old (Doc. 134 at 5), the Court finds that Defendants must 20 determine and provide to the Magistrate Judge an anticipated “reasonable terminus” of 21 the ongoing criminal investigation into Plaintiffs. See Hardrives, 1991 WL 12008395 at 22 *5. 23 Accordingly, 24 IT IS ORDERED that Plaintiff’s Motion for Reconsideration (Doc. 120) is 25 denied. 26 IT IS FURTHER ORDERED that Plaintiffs’ Motion for Clarification (Doc. 134) 27 is granted in part and denied in part, as follows: 28 . . . . 1 (1) The Motion for Clarification is granted to the extent that Defendants must 2 provide to Magistrate Judge Leslie A. Bowman an anticipated “reasonable 3 terminus” of the ongoing criminal investigation into Plaintiffs’ potential 4 involvement in the Forgeus Apartment fires. This information may be provided 5 ex parte and in camera. Magistrate Judge Leslie A. Bowman shall consider 6 Defendants’ submitted report and projected timeline (see Doc. 124) and the 7 anticipated reasonable terminus of the investigation to ensure that Plaintiffs’ 8 claims in this action are litigated consistent with their due process rights and 9 applicable case law, including ascertaining a reasonable terminus to 10 Defendants’ criminal investigation of Plaintiffs and adjusting the discovery 11 schedule accordingly. 12 (2) The Motion for Clarification is denied in all other respects. 13 Dated this 8th day of May, 2020. 14 1s aT fs 7) 16 Ty 4 (fare Z oe Honorable Rosthary Mafquez 17 United States District Iidge 18 19 20 21 22 23 24 25 26 27 28

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