Morales v. City of Bellingham

• Court: District Court, W.D. Washington
• Decided: November 6, 2020
• Docket: 2:19-cv-02078
• Status: Unknown

Opinion

HONORABLE RICHARD A. JONES 1

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

10 DAVID ARTHUR MORALES, No. 2:19-cv-02078-RAJ 11

12 Plaintiff, ORDER DENYING PLAINTIFF’S v. MOTION FOR LEAVE TO 13 SUPPLEMENT RESPONSE TO CITY OF BELLINGHAM, et al., DEFENDANTS’ MOTION FOR 14 SUMMARY JUDGMENT 15 Defendants.

17 18 I. INTRODUCTION 19 This matter comes before the Court on Plaintiff’s Motion for Leave to File 20 Supplemental Response to Defendants’ Motion for Summary Judgment. Dkt. # 29. 21 Defendants oppose this motion. Dkt. # 31. For the reasons below, the Court DENIES 22 this motion. 23 II. BACKGROUND 24 On Friday, January 6, 2017, Plaintiff David Arthur Morales (“Plaintiff”) was 25 arrested by Bellingham police officers following his encounter two days earlier with 26 Bellingham parking enforcement officer Heidi Sande. Dkt. # 1 ¶¶ 4.1-4.7. Plaintiff spent 27 two days in jail before appearing before a judge and was released on bail on Sunday, 1 January 8, 2017. Id. ¶¶ 4.12-4.13. The charges against Plaintiff were dismissed without 2 prejudice on April 14, 2017. Id. ¶ 4.14. 3 On December 23, 2019, Plaintiff filed this lawsuit against Defendants City of 4 Bellingham, a municipal corporation; Bellingham parking enforcement officer Heidi 5 Sande, her spouse, and marital community; and Bellingham police officers Joshua Danke, 6 Jeffery Yoder, Eric Kingery, and Kyle Nelson, and their respective spouses and marital 7 communities (collectively “Defendants”). Id. ¶¶ 3.1-3.7. Plaintiff seeks relief pursuant 8 to 42 U.S.C. § 1983 for his allegedly unlawful arrest and incarceration by the named 9 police officers and for the City of Bellingham’s failure to train and supervise its police 10 officers. Id. ¶¶ 5.2-6.8. He also seeks recovery under state negligence law for harm 11 suffered as a result of the allegedly negligent arrest and imprisonment. Id. ¶¶ 7.1-7.4. 12 On August 13, 2020, Defendants filed a motion for summary judgment with a 13 noting date of September 25, 2020. Dkt. # 16. On September 17, 2020, Plaintiff moved 14 the Court for leave to supplement his response to Defendants’ motion for summary 15 judgment, also with a noting date of September 25, 2020. Dkt. # 29. Defendants 16 opposed Plaintiff’s motion for leave to supplement his response after the deadline to file 17 his response. Dkt. # 31. Plaintiff filed a response to the motion for summary judgment 18 on September 21, 2020. Dkt. # 35. 19 III. DISCUSSION 20 Pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, “[u]nless a 21 different time is set by local rule or the court orders otherwise, a party may file a motion 22 for summary judgment at any time until 30 days after the close of all discovery.” If the 23 nonmoving party shows that “for specified reasons, it cannot present facts essential to 24 justify its opposition” the court may defer considering the motion, allow time to take 25 discovery, or issue any other appropriate order. Fed. R. Civ. Pro. 56(d). To succeed in 26 such a request, the nonmoving party must “identify the specific facts that further 27 discovery would have revealed or explain why those facts would have precluded 1 summary judgment.” Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1100 (9th 2 Cir. 2006). According to Local Rule 7(j), “[a] motion for relief from a deadline should, 3 whenever possible, be filed sufficiently in advance of the deadline to allow the court to 4 rule on the motion prior to the deadline,” unless the motion is based on a “true, 5 unforeseen emergency.” Local Rules W.D. Wash. LCR 7(j). 6 Here, Plaintiff filed the motion seeking leave to supplement his response to 7 Defendants’ motion for summary judgment a mere four days before the response was 8 due. Plaintiff’s failure to file the motion sufficiently in advance of the deadline is not 9 based on an alleged emergency and is not supported by any exigent circumstances. The 10 motion is therefore untimely. 11 Even if the Court were to consider Plaintiff’s request, Plaintiff has failed to 12 indicate that he is unable to present facts essential to justify his opposition as required by 13 Rule 56(d). He claims that he cannot respond fully to the motion for summary judgment 14 without obtaining Defendant Sande’s deposition transcript and without deposing her 15 supervisor, Sergeant Lanham. Dkt. # 30 at 2. He explains that, as Defendant Sande’s 16 supervisor in 2017, Sergeant Lanham “should be familiar with all the policies and 17 procedures affecting the parking enforcement officers, aware of what if anything would 18 make Defendant Sande’s actions lawful and what additional problems Defendant Sande 19 had with the public during his tenure.” Dkt. # 38 at 2-3. 20 Plaintiff, however, fails to explain why the information contained therein is 21 essential to his opposition. Plaintiff concedes that without Sergeant Lanham’s deposition 22 “it is difficult to know what he will provide.” Dkt. # 38 at 2. Defendants argue that 23 Sergeant Lanham was not involved in the investigation or arrest of Plaintiff—the issues 24 addressed in the motion for summary judgment—and is therefore unable to provide facts 25 necessary to Plaintiff’s response. Dkt. # 31 at 2. The Court agrees. Plaintiff’s 26 speculation on the information Sergeant Lanham might provide is insufficient to meet the 27 requirement of Rule 56(d). Based on this failure to identify facts that might preclude 1 summary judgment, the Court DENIES his motion. 2 IV. CONCLUSION 3 Based on the foregoing reasons, the Court DENIES Plaintiff’s Motion for Leave 4 to Supplement Response to Motion for Summary Judgment. Dkt. # 29. 5 6 DATED this 6th day of November, 2020.

7 A 8

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

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