United States District Court, District of Arizona
March 27, 2015
Karyl Krug, Plaintiff,
Maricopa County Superior Court, et al., Defendants.
ORDER AND OPINION [RE: MOTION AT DOCKET 12]
JOHN W.SEDWICK, SENIOR UNITED STATES DISTRICT JUDGE.
I. MOTION PRESENTED
At docket 12 plaintiff Karyl Krug (“Krug”) proceeding in propria persona filed a motion for reconsideration pursuant to Local Rule 7.2(g). In substance, Krug’s motion requests reconsideration or relief from the judgment entered against her at docket 9. If a motion for reconsideration is filed within 10 days of entry of judgment, as Krug’s motion was, it is treated as a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e). Defendants Maricopa County Superior Court, et al. (collectively, “defendants”) filed an opposition at docket 27. Oral argument was not requested but would not assist the court.
The background giving rise to this lawsuit is set out in detail in the court’s earlier order at docket 7 and need not be repeated here. In that order the court g ranted defendants’ motion to dismiss Krug’s complaint for failure to state a claim. Thereafter, judgment was entered that Krug take nothing.
III. STANDARD OF REVIEW
“[R]econsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly.” District courts enjoy considerable discretion in granting or denying a motion to reconsider. “In general, there are four basic grounds upon which a Rule 59(e) motion may be granted: (1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such motion is necessary to present newly discovered or previously unavailable evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an intervening change in controlling law.” A Rule 59(e) motion may not be used to raise arguments or present evidence that could have been raised prior to the entry of judgment.
Krug argues that reconsideration of the judgment is necessary to correct the following five manifest errors of fact or law upon which the judgment rests: (1) the court misapplied Rule 12(b)(6); (2) the court made an inappropriate credibility determination based on a deceptive exhibit; (3) the court violated Rule 12(d) by not giving the parties sufficient notice that it would review evidence outside the pleadings; (4) the court erred in ruling that the complaint does not address an obvious alternative explanation for Krug’s termination; and (5) the court erred in ruling that it would be futile to allow Krug to amend her complaint to name Maricopa County as a defendant.
A. The Court Properly Applied Rule 12(b)(6)
Krug argues that the court misapplied Rule 12(b)(6) by not construing the complaint in the light most favorable to Krug and by inappropriately relying on Ashcroft v. Iqbal. These arguments lack merit.
With regard to Krug’s first argument, the only matter that Krug challenges with specificity is the court’s conclusion that the only factual support in her complaint for her claim that she was fired in retaliation for protected speech is the timing of her termination. Krug argues that this conclusion is “insupportable” because of “the copious factual recitations set out in” her complaint. Because Krug’s motion does not cite a single one of these factual recitations, and because her retaliatory termination claims are supported by legal conclusions, not facts, Krug’s argument fails.
With regard to Krug’s second argument, Krug argues that Iqbal’s “‘plausibility’ analysis” does not apply because the defendants in this case are not “geographically remote.” Krug cites no authority to support her argument that if there is no “geographic remoteness of the parties” a complaint need not allege plausible claims. This argument lacks merit.
B. The Court Did Not Make a Credibility Determination Based on Exhibit 1, and Exhibit 1 Is Not Deceptive
In its dismissal order the court held that the facts in Krug’s complaint are consistent with her retaliatory termination claims, but insufficient to render those claims plausible. The court bolstered this conclusion by observing that the complaint does not adequately address an obvious alternative explanation for Krug’s termination: the inappropriate language Krug used in an email to defendant Diane Alessi (“Alessi”). Krug’s complaint mentions the email in several locations,  and defendants provided a copy of it to the court as Exhibit 1 to their motion to dismiss.
Krug now asserts that the court determined she is not credible based on Exhibit 1 and that Exhibit 1 is incomplete and therefore deceptive. As to Krug’s former assertion, the court made no such credibility determination. Further, Krug’s assertion that Exhibit 1 is deceptive is unpersuasive because Krug effectively admits in her opposition that Exhibit 1 shows her “discourtesy” and “lack of civility” toward Alessi.
C. The Court Did Not Consider Evidence Outside the Pleadings
Krug next argues that the court violated Rule 12(d) by considering evidence outside the pleadings (Exhibit 1 to defendants’ motion to dismiss) without giving the parties a reasonable opportunity to present all pertinent material. Krug raised this same argument in opposition to defendants’ motion to dismiss. But, as the court pointed out in its dismissal order, evidence is not “outside” the complaint if the complaint specifically refers to it and if its authenticity is not questioned. Krug has never disputed that her complaint refers to the email found in Exhibit 1,  nor has she questioned that exhibit’s authenticity. To the contrary, Krug admits that Exhibit 1 shows “an e-mail exchange between Krug and Defendant’s [sic] Alessi and Westover.”
D. The Court Correctly Ruled That the Complaint Does Not Address an Obvious Alternative Explanation for Krug’s Termination
Krug argues that the court erred in ruling that her complaint fails to address the possibility that she was terminated not for her protected speech, but for using unprofessional language in her email to Alessi. Plaintiff asserts that this ruling is incorrect because she addresses that email in her opposition to defendants’ motion. In her opposition, Krug states:
Clearly, the Defendants’ [sic] intend to defend themselves with an obvious pretext, that Krug’s alleged discourtesy to Defendant Alessi somehow trumps all the public interests concern [sic] addressed in the previous sections, and is the real reason that Krug was terminated. Given the remedial actions the Defendants took after having fired Krug, it seems unlikely that a lack of civility to co-Defendant Alessi was the real reason Krug was terminated. It seems probable that the criminal liability of all the Defendants was at the heart of this illegal retaliation against Krug.
The fact remains, however, that Krug’s complaint does not address the possibility that she was terminated for using unprofessional language. Krug’s argument that this possibility is unlikely is conclusory and unpersuasive.
E. The Court Correctly Ruled That It Would Be Futile to Allow Krug to Amend Her Complaint to Name Maricopa County As a Defendant
Finally, Krug argues that it would not be futile to allow her to amend her complaint to add Maricopa County as a defendant. The basis for this argument is her “impression that she was a hybrid Maricopa County” and Maricopa County Superior Court employee and, therefore, maybe Maricopa County would have to satisfy a potential judgment in this case. Because Krug does not provide any evidence or legal authority that shows that she was actually employed by Maricopa County, nor does she explain why she was unable to present such evidence or authority in opposition to defendants' motion to dismiss, Krug's argument lacks merit.
For the reasons above, the motion at docket 12 is DENIED.