Puente v. Phoenix, City of

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Puente, et al., No. CV-18-02778-PHX-JJT

10 Plaintiffs, ORDER

11 v.

12 City of Phoenix, et al.,

13 Defendants. 14 15 At issue are two Motions related to the Court’s resolution of the parties’ pending 16 Motions for Summary Judgment: Plaintiffs’ Motion to Strike Defendants’ Response to 17 Plaintiffs’ Notice of Supplemental Authority in Support of Opposition to Defendants’ 18 Motion for Summary Judgment (Doc. 323), and Plaintiffs’ Motion to Unseal Exhibit 149 19 to Plaintiffs’ Motion for Partial Summary Judgment (Doc. 328). 20 In the former Motion (Doc. 323), Plaintiffs argue that Defendants’ Response 21 (Doc. 322) to Plaintiffs’ Notice of Supplemental Authority (Doc. 321) was impermissible 22 legal argument that the Court should not allow under Local Rule 7.2(m). Notices of 23 supplemental authority are permitted for the narrow purpose of bringing the Court’s 24 attention to a case decided after the briefing on a pending motion. Plaintiffs’ Notice did 25 that and more; it also presented an argument in support of their opposition to Defendants’ 26 pending requests for summary judgment. As such, the Notice was more akin to a sur-reply 27 (which Plaintiffs filed without leave of Court). Because Plaintiffs included argument in 28 their Notice, the Court would have granted Defendants leave to respond had Defendants 1 || requested it. Accordingly, the Court declines to strike Defendants’ Response (Doc. 322) to 2|| Plaintiffs’ Notice (Doc. 321), and the Court will consider both in resolving the pending 3 || summary judgment motions. 4 In the latter Motion (Doc. 328), Plaintiffs seek to unseal Exhibit 149, which they 5 || filed under seal in conjunction with their summary judgment motion (Doc. 257-7), because 6 || the contents of the Exhibit—a Facebook post by Sergeant Douglas McBride that shows the || image of his team’s “new patch” after the officers’ actions at the protests on August 22, 8 || 2017—have become public by way of news coverage and the city manager’s reporting of 9|| the results of a law firm’s investigation into a challenge coin containing the same message as the “new patch.” Defendants argue that the information in Exhibit 149 is still private 11 || because it was on the officer’s Facebook page, but the Court disagrees. The “compelling reason” for filing Exhibit 149—protection of private information—no longer exists, 13 || because the information has become public. Indeed, the information in Exhibit 149 adds 14]| little to that cited by Plaintiffs as already in the public domain. Without the requisite 15 || compelling reason to keep information sealed “that outweigh[s] the historical right of access and the public policies favoring disclosure,” the Court must order Exhibit 149 || unsealed. Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006); || see also Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016). 19 IT IS THEREFORE ORDERED denying Plaintiffs’ Motion to Strike Defendants’ 20 || Response to Plaintiffs’ Notice of Supplemental Authority in Support of Opposition to □□ Defendants’ Motion for Summary Judgment (Doc. 323). 22 IT IS FURTHER ORDERED granting Plaintiffs’ Motion to Unseal Exhibit 149 23 || to Plaintiffs’ Motion for Partial Summary Judgment (Doc. 328). 24 IT IS FURTHER ORDERED directing the Clerk of Court to unseal and file 25 || Exhibit 149, currently filed under seal at Doc. 257-7. 26 Dated this 27th day of October, 2021. CN

Unig StatesDistrict Judge

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