Stuart v. Scottsdale, City of

Opinion

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

9 Mark E Stuart, et al., No. CV-20-00755-PHX-JAT

10 Plaintiffs, ORDER

11 v.

12 City of Scottsdale, et al.,

13 Defendants. 14 15 Pending before the Court is Plaintiffs’ “Rule 60 Motion for Relief from this 16 Court’s Judgement Dated March 9, 2022 (doc. 151).” (Doc. 158). The motion is fully 17 briefed, (Docs. 158, 159, 160), and the Court now rules. 18 I. PROCEDURAL HISTORY 19 On March 9, 2022, the Court granted Defendants’ Motion for Summary Judgment 20 and dismissed the case. (Doc. 151). Plaintiffs appealed this Court’s Order to the Ninth 21 Circuit. (Doc. 153). Plaintiffs have now filed a Rule 60 motion, arguing that newly 22 discovered evidence warrants the Court vacating its decision. (Doc. 158 at 1). 23 II. DISCUSSION 24 In the Ninth Circuit, the “filing of the notice of appeal divests the district court of 25 jurisdiction.” Gould v. Mutual Life Ins. Co., 790 F.2d 769, 772 (9th Cir. 1986). When a 26 Rule 60(b) motion is filed in district court after a notice of appeal has been filed, the 27 district court lacks jurisdiction to entertain the motion. Williams v. Woodford, 384 F.3d 28 567, 586 (9th Cir. 2004); Carriger v. Lewis, 971 F.2d 329, 332 (9th Cir. 1992). “To seek 1 Rule 60(b) relief during the pendency of an appeal, the proper procedure is to ask the 2 district court whether it wishes to entertain the motion, or to grant it, and then move [the 3 Ninth Circuit], if appropriate, for remand of the case.” Williams, 384 F.3d at 586. Where 4 an appellant does not follow this procedure, a district court’s order on the Rule 60(b) 5 motion is void for lack of jurisdiction. See Katzir’s Floor & Home Design, Inc. v. M- 6 MLS.COM, 394 F.3d 1143, 1148 (9th Cir. 2004) (vacating district court’s order denying a 7 post-notice of appeal Rule 60(b) motion where proper procedure not followed). 8 Plaintiffs appear to understand that the Court is without jurisdiction because they 9 say that should this Court “grant this motion,” they “will bring a FRCP 62.1 motion and a 10 motion for remand of the appeal to allow this Court to vacate its rulings and allow 11 another judge to decide the summary judgment motions.” (Doc. 158 at 15–16). In their 12 Reply, Plaintiffs further clarify that “this Court can’t grant plaintiffs [sic] Rule 60 motion, 13 because of the pending appeal.” (Doc. 160 at 1). As such, the most the Court can do is to 14 indicate whether it would entertain or grant Plaintiffs’ Rule 60(a) and 60(b) motion if the 15 matter were to come before the Court on a limited remand from the Ninth Circuit. 16 A. Rule 60(a) Motion 17 Plaintiffs first argue that the Court should correct its factual error under Rule 18 60(a). (Doc. 158 at 3). Plaintiffs assert that the Court’s Order granting summary judgment 19 states that “Defendants are seeking to satisfy a judgment of attorney fees,” (Doc. 151 at 20 7), when Defendants are actually seeking to satisfy a judgment stemming from Rule 68 21 sanctions. (Doc. 158 at 3). Plaintiffs argue that, through this misstatement, the Court is 22 “trying to denigrate the plaintiffs in the eyes of the appeals courts.” (Doc. 158 at 3). 23 Under Rule 60(a), a “court may correct a clerical mistake or a mistake arising 24 from oversight or omission whenever one is found in a judgment, order, or other part of 25 the record.” After an appeal has been docketed, however, “such a mistake may be 26 corrected only with the appellate court’s leave.” FED. R. CIV. P. 60(a). 27 Both parties agree that this Court erred, (Doc. 159 at 3), and this Court agrees that 28 it mistakenly labeled Plaintiffs’ Rule 68 sanctions as attorney fees. The Court, however, 1 was not “trying to denigrate the plaintiffs in the eyes of the appeals courts.” (Doc. 158 at 2 3). As this Court said in addressing the issue in Plaintiffs’ Motion to Recuse, “[i]t is 3 unclear how this statement creates bias against Plaintiffs,” (Doc. 140 at 5), and that the 4 misstatement was an accident. (Doc. 140 at 5). 5 If the Ninth Circuit remands the matter for the limited purpose of remedying this 6 oversight, the Court will correct the error in accordance with Plaintiffs’ request. 7 Alternatively, the Ninth Circuit may treat this Court’s error as if it was corrected without 8 requiring the formality of a correction by this Court to conserve judicial resources. Huey 9 v. Teledyne, Inc., 608 F.2d 1234, 1237 (9th Cir. 1979); 11 CHARLES ALAN WRIGHT & 10 ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2856 (3d ed.). 11 B. Rule 60(b) Motion 12 Plaintiffs also argue that new evidence supports relief from the judgment under 13 Rule 60(b). (Doc. 158 at 2–3). Rule 60(b)(2) allows relief from judgment when there is 14 “newly discovered evidence which by due diligence could not have been discovered in 15 time to move for a new trial under Rule 59(b).” FED. R. CIV. P. 60(b)(2). 16 Plaintiffs argue that their “newly discovered evidence” comes from Commissioner 17 Albrecht’s evidentiary hearing which occurred on May 20, 2022, two months after 18 summary judgment. (Doc. 158 at 4). Defendants sought reconsideration in Maricopa 19 County Superior Court of an earlier ruling by Commissioner Garbarino that determined 20 the community was “not liable for the debt at this time.” (Doc. 139-1 at 3). Following an 21 evidentiary hearing, Commissioner Albrecht agreed with Commissioner Garbarino’s 22 decision. The pertinent part of Commissioner Albrecht’s ruling reads: However, the Court cannot find in this matter that the ligation brought by 23 Mark Stuart could have brought any benefit to the community. The 24 evidence presented supports the conclusion that there was not conduct attributable to the community. 25 (Doc 158-1 at 2–3). Plaintiffs argue that Commissioner Albrecht’s ruling proves that this 26 Court’s summary judgment ruling was erroneous as it “indicates that Scottsdale had no 27 factual basis to believe that Mark Stuart was acting on behalf of the Stuart marital 28 community or for the benefit of the Stuart marital community.” (Doc. 158 at 5). 1 Plaintiffs’ argument fails for several reasons. To begin, it is not apparent that the 2 new evidence cited by Plaintiffs is in fact “newly discovered evidence” contemplated by 3 Rule 60(b)(2). Notably, new case law does not constitute “newly discovered evidence” 4 for purposes of Rule 60(b)(2). Sons of Hell Motorcycle Club v. Ariz. Dep’t of Pub. Safety, 5 No. CV-13-08192-PCT-PGR, 2014 U.S. Dist. LEXIS 118113, at *19 (D. Ariz. Aug. 25, 6 2014). And Plaintiffs have not presented any evidence that further developments in a 7 separate case is considered “newly discovered evidence.” 8 Additionally, even if Plaintiffs’ new evidence constitutes “newly discovered 9 evidence” under Rule 60(b)(2), the evidence does not warrant reconsideration by this 10 Court. Commissioner Albrecht’s ruling has no bearing on whether Scottsdale’s actions in 11 initiating garnishment proceedings were improper because his ruling does not address 12 whether Scottsdale had any “factual basis to believe that Mark Stuart was acting on 13 behalf of the Stuart marital community.” (Doc. 158 at 5). Nor does Commissioner 14 Albrecht’s ruling address whether Defendants abused or misused the garnishment statute, 15 or whether the property subject to garnishment was community property. Rather, 16 Commissioner Albrecht’s ruling only addresses the issue of whether Mr. Stuart bound the 17 marital community when he sued Scottsdale. (Doc 158-1 at 2–3). 18 Plaintiffs argue that Commissioner Albrecht’s ruling proves “wrongful 19 garnishment under Arizona law.” (Doc. 158 at 6). This argument is unavailing. Although 20 Plaintiffs rely on De Wulf v. Bissell, 83 Ariz. 68 (1957) to argue that a wrongful 21 garnishment occurred, De Wulf is distinguishable from the facts here. In De Wulf, the 22 Arizona Supreme Court found that the garnishment was wrongful. Id. at 72. Yet no such 23 finding has occurred here. In fact, in Commissioner Garbarino’s earlier ruling, he found 24 that Plaintiffs’ arguments that the “Writs of Garnishment were procured by fraud and/or 25 are groundless” had “no merit.” (Doc. 139-1 at 4). Commissioner Garbarino found this 26 despite concluding that the community was not liable for the debt or obligation. (Doc. 27 132-1 at 3). Thus, Commissioner Albrecht’s ruling—which affirmed Commissioner 28 Garbarino’s finding—did not touch on the issue of wrongful garnishment. 1 The Court also finds that Plaintiffs do not advance any persuasive argument 2|| suggesting that Commissioner Albrecht’s ruling warrants relief on their other claims. || Repeatedly, Plaintiffs claim that Commissioner Albrecht’s ruling “shows that there was 4|| no legitimate factual basis to believe that defendants had a lawful right to seize plaintiffs 5|| [sic] property.” (Doc. 158 at 11). And Plaintiffs claim that “defendants knew that || plaintiffs were not liable to pay for their judgment against Mark Stuart.” (Doc. 158 at 9). 7 But Scottsdale did not characterize the nature of the funds being garnished: 8 || “Assuming that there is community property involved . . . [t]he court should afford her 9|| [Virginia Stuart] an opportunity to present whatever clear and convincing evidence she may have to overcome the presumption that Mark Stuart was acting on behalf of the 11 |} community when he sued the City.” (Doc. 122-1 at 8). This is in part because Mr. Stuart || “improperly obstructed post-judgment discovery ... as to the divisions between his 13} community and separate property.” (Doc. 139-1 at 4). As such, Plaintiffs’ assertions 14 || about Commissioner Albrecht’s ruling are not supported by the record. 15 Plaintiffs have failed to show that the evidence they claim is newly discovered 16 || would warrant relief from judgment. Accordingly, the Court will not entertain—and is || not likely to grant—Plaintiff’s Rule 60(b)(2) Motion for Relief. 18] I. CONCLUSION 19 For the foregoing reasons, 20 IT IS ORDERED that Plaintiffs’ Rule 60 Motion (Doc. 158) is DENIED. 21 Dated this 22nd day of July, 2022. 22 23 A 24 James A. Teilborg 25 Senior United States District Judge 26 27 28

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