Strickland v. City of Auburn

Opinion

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4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 ENOSA STRICKLAND, SR.; KATHLEEN CASE NO. 22-cv-528 KELIIKOA-STRICKLAND, individually and 8 as co-Personal Representative of the ESTATE ORDER DENYING PLAINTIFFS’ OF ENOSA STRICKLAND JR., MOTION FOR RECONSIDERATION 9 Plaintiffs, 10 v. 11 CITY OF AUBURN, a municipality; 12 KENNETH LYMAN, individually,

13 Defendants. 14 15 This matter comes before the Court on Plaintiffs’ Motion for Reconsideration of this 16 Court’s order granting in part and denying in part Defendant’s motion for a protective order 17 regarding the Fifth Amendment (the “Underlying Motion”). Dkt. Nos. 74, 75. 18 “Motions for reconsideration are disfavored,” and “[t]he court will ordinarily deny such 19 motions in the absence of a showing of manifest error in the prior ruling or a showing of new 20 facts or legal authority which could not have been brought to its attention earlier with reasonable 21 diligence.” Local Civil Rule 7(h)(1). To have any chance at success, a motion for reconsideration 22 must “point out with specificity the matters which the movant believes were overlooked or 23 misapprehended by the court, any new matters being brought to the court’s attention for the first 24 time, and the particular modifications being sought in the court’s prior ruling.” Id. 1 In its order on the Underlying Motion, the Court held that Defendant Lyman had a basic 2 right to invoke the Fifth Amendment in a civil case, but the Court declined to rule prospectively 3 about the specific application of the privilege or waiver without Plaintiff actually putting the

4 questions to Defendant Lyman during a deposition. In their motion for reconsideration, Plaintiffs 5 offer excerpts from various discovery responses, rehashing their arguments about waiver, but as 6 the Court previously stated, “the privilege is not so easily waived.” Plaintiffs’ motion also 7 requests a new form of relief by seeking Defendant Lyman’s answers to questions about other 8 police officers. A new request for relief, however, is not the proper subject of a motion to 9 reconsider. Even assuming the issue were properly presented, the Court’s previous ruling about 10 the need for context would apply with equal force. 11 Plaintiffs do not allege that the Court committed manifest error. Nor do they present any 12 “new facts or legal authority” that could not have been brought to the Court’s attention earlier.

13 See Local Civil Rule 7(h)(1). As such, Plaintiffs fail to show why the Court should reverse or 14 modify its previous ruling. Therefore, the Court DENIES Plaintiffs’ motion for reconsideration. 15 The Court takes to heart Plaintiffs’ concerns about the burdens of conducting a deposition 16 only for the deponent to repeatedly invoke the Fifth Amendment. But the Court disagrees with 17 the notion that any responses would merely be “window-dressing” or needlessly reveal litigation 18 strategy since a party’s invocation of the Fifth Amendment in a civil case may lead to an adverse 19 inference. Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000) (citing SEC 20 v. Colello, 139 F.3d 674, 677 (9th Cir.1998)). For the same reason the Court cannot rule 21 prospectively on the application of the Fifth Amendment, it takes no position on the 22 appropriateness of adverse inferences at this time.

23 It is so ORDERED. 24 Dated this 26th day of July, 2023. 1 A 2 Jamal N. Whitehead United States District Judge 3

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