Reimer v. South Snohomish County Fire and Rescue Regional Fire Authority

Opinion

1 Honorable Richard A. Jones

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

9 MELISSA A. REIMER, 10 No. 2:17-cv-00384-RAJ 11 Plaintiff,

12 v. ORDER DENYING MOTION FOR RECONSIDERATION 13 THE COUNTY OF SNOHOMISH, a 14 political subdivision of Washington State; SNOHOMISH COUNTY FIRE 15 DISTRICT #1, as agent of Snohomish County, BRAD REDDING, an agent and 16 employee of Snohomish County, in his official capacity, 17

18 Defendants. 19 This matter is before the Court on Plaintiff’s motion for reconsideration. 20 Plaintiff’s motion is DENIED. Dkt. # 66. 21 Motions for reconsideration are disfavored and will be granted only upon a 22 “showing of manifest error in the prior ruling” or “new facts or legal authority which 23 could not have been brought to [the court’s] attention earlier with reasonable diligence.” 24 Local R. W.D. Wash. (“LCR”) 7(h)(1). Plaintiff argues there are manifest legal and 25 factual errors in this Court’s order granting Defendants’ motion for summary judgment 1 such that reconsideration is appropriate. Dkt. # 66. Specifically, Plaintiff contends that 2 Defendants failed to provide sufficient evidence to establish that there was no genuine 3 dispute of material fact regarding Plaintiff’s failure to comply with Washington’s claim 4 filing statute. Dkt. # 66 at 8. The Court disagrees. 5 Plaintiff is correct that failure to appoint a claim agent may result in the inability 6 of a local government entity to raise an exhaustion defense under RCW 4.96.020(2). In this case, however, Defendants offered Snohomish County Auditor records1 evidencing 7 their compliance with RCW 4.96.020, including the appointment of a claim agent. See 8 Dkt. ## 60-62. Plaintiff, for her part, offered no evidence to show that she complied 9 with the claim filing statute or to support her claims of Defendants’ non-compliance, 10 beyond her own conclusory allegations and self-serving testimony. Uncorroborated 11 allegations and “self-serving testimony” will not create a genuine issue of material fact. 12 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). Plaintiff’s 13 repeated allegations that Defendants did not identify a claim agent or comply with RCW 14 4.96.020, in the face of direct evidence to the contrary, do not create a genuine issue of 15 material fact sufficient to survive summary judgment.2 16 17 1 Plaintiff also appears to challenge the authenticity of the claim agent appoint forms 18 recorded with the Snohomish County Auditor. Dkt. # 66 at 7. “A trial court may presume that public records are authentic and trustworthy. The burden of establishing 19 otherwise falls on the opponent of the evidence, who must come ‘forward with enough 20 negative factors to persuade a court that a report should not be admitted.’ ” Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th Cir.1999) (quoting Johnson v. City of 21 Pleasanton, 982 F.2d 350, 352 (9th Cir.1992)). Plaintiff does not meet this burden. 2 The fact that Defendants submitted evidence supporting the appointment of a claim 22 agent in a reply brief is not dispositive. Although courts generally should not consider 23 “new evidence” raised for the first time in a reply brief, in this case, Defendants’ did not submit “new evidence.” Rather, they rebutted arguments raised by Plaintiff in her 24 opposition to Defendants’ motion. Edwards v. Toys “R” Us, 527 F. Supp. 2d 1197, 1205 n.31 (C.D. Cal. 2007) (citing Terrell v. Contra Costa County, 232 Fed. Appx. 626, 25 629 n. 2 (9th Cir. Apr. 16, 2007) (“[e]vidence is not ‘new,’ ... if it is submitted in direct

response to proof adduced in opposition to a motion.”). 1 Plaintiff also objects to this Court’s denial of her request to amend her complaint 2 to assert a claim under Title II of the ADA. It is within the discretion of the district 3 court whether to grant leave to amend. Foman v. Davis, 371 U.S. 178, 182 (1962). In 4 this case, the court considered all relevant factors and ultimately concluded that leave to 5 amend was not warranted. See Dkt. # 65 at 5 (noting this case has been pending for 6 three years, Plaintiff was given previous opportunities to amend, and amendment was only requested after Defendants filed for summary judgment). This is consistent with 7 Ninth Circuit precedent. See Solomon v. N. Am. Life & Cas. Ins. Co., 151 F.3d 1132, 8 1139 (9th Cir. 1998) (affirming denial of leave to amend where the plaintiff filed the 9 motion “on the eve of the discovery deadline”); Roberts v. Ariz. Bd. of Regents, 661 10 F.2d 796, 798 (9th Cir. 1981) (prejudice may be found where additional claims are 11 “raised at the eleventh hour, after discovery [is] virtually complete and the [defendant’s] 12 motion for summary judgment [is] pending before the court.”); Forty-Niner Sierra 13 Resources, Inc. v. Subaru of America, Inc., 416 F. Supp.2d 861, 871 (E.D. Cal. 2004) 14 (“... a movant may not amend the pleadings to escape summary judgment.”). In sum, 15 Plaintiff’s motion identifies no new facts, legal authority, or manifest error necessitating 16 reconsideration. 17 For the foregoing reasons, Plaintiff’s motion for reconsideration is DENIED. 18 Dkt. # 66. 19 DATED this 26th day of March, 2020. 20

21 A

22 23 The Honorable Richard A. Jones United States District Judge 24