Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gesell v. County of Maricopa

United States District Court, District of Arizona

April 2, 2015

Don Gesell, Plaintiff,
v.
County of Maricopa, et al., Defendants.

ORDER

HONORABLE EILEEN S. WILLETT, UNITED STATES MAGISTRATE JUDGE

Pending before the Court are cross-motions for summary judgment in a civil case removed from Maricopa County Superior Court arising from the arrest of the Plaintiff which occurred in October 2012. The parties have consented to proceeding before a Magistrate Judge pursuant to Rule 73, Fed.R.Civ.P. and 28 U.S.C. § 636(c). (Docs. 5, 6).

Procedural History

Plaintiff filed a Complaint (Doc. 1-1) in Maricopa County Superior Court on October 4, 2013. The case was removed to U.S. District Court on November 19, 2013 by Notice of Removal of Maricopa County Superior Court civil cause number CV2013-050473, under 28 U.S.C. § 1441(b). (Doc. 1). Defendants filed an Answer on November 26, 2013 (Doc. 3). All issues are joined.

Plaintiff filed a “Motion for Summary Judgment in Part” (Doc. 38), “Memorandum of Points, Authorities and Law in Support of Plaintiff Don Gesell’s Motion for Partial Summary Judgment” (Doc. 39); and “Plaintiff’s L.R.Civ. 56.1 Statement of Facts in Support of Motion for Summary Judgment in Part” (Doc. 40) on December 8, 2014. Defendants filed their “Response to Gesell’s Motion for Summary Judgment (Docs. 38 and 39) and Motion to Strike” (Doc. 44); and “Response to Plaintiff’s Statement of Facts (Doc. 40) and Separate Statement of Facts” (Doc. 45) on January 12, 2015. Plaintiff filed his “Motion for Leave to File Memorandum of Law in Support of Motion for Summary Judgment in Excess of Page Limit” (Doc. 46) on January 14, 2015. On January 21, 2015, Plaintiff filed his Reply (Doc. 49).

Defendants filed their “Motion for Summary Judgment” (Doc. 41) and “Separate Statement of Facts in Support of Their Motion for Summary Judgment” (Doc. 42) on December 19, 2014. Plaintiff responded (Doc. 43) on December 23, 2014, and Defendants replied (Doc. 48) on January 16, 2015. Defendants also filed their “Supplemental Statement of Facts” (Doc. 47).

Though the Court is faced with cross-motions for summary judgment, the parties did not file stipulated facts. The Court will evaluate each motion on its own merits.

Motion to Strike and Motion for Leave to File Memorandum of Law in Support of Motion for Summary Judgment in Excess of Page Limit

Plaintiff’s Motion for Summary Judgment in Part (Doc. 38), Supporting Memorandum (Doc. 39), and Statement of Facts (Doc. 40) fail to comply with Rule 56(e), Fed. R. Civ. P., L.R.Civ. 56.1(a), and L.R.Civ. 7.2.

Plaintiff’s Motion and Memorandum are forty-nine pages long, exclusive of the Statement of Facts and attachments. Plaintiff has not shown good cause to exceed the page limit of seventeen pages set forth in L.R.Civ. 7.2(e)(1). The Motion and Memorandum (Docs. 38 and 39) are repetitive.

In addition, L.R.Civ. 56.1(a) states that “Each material fact in the separate statement must be set forth in a separately numbered paragraph and must refer to a specific admissible portion of the record where the fact finds support (for example, affidavit, deposition, discovery, response, etc.). A failure to submit a separate statement of facts in this form may constitute grounds for the denial of the Motion.” In the Statement of Facts, Plaintiff fails to attach referenced deposition transcripts of Donald A. Gesell, Brianna Gesell, Hannah Gesell (Doc. 40, paragraphs 15 through 19, 21-22, 24, 29 through 34). Paragraphs 5 through 14, 37, 40, and 41 of the Statement of Facts are unsupported by any citation to the record, and paragraphs 7 through 14 are not factual statements. (Doc. 40). Documents cited in the Statement of Facts at paragraphs 22 (there are two paragraphs 22), 36, 38, 39, and 47 contain no Tab location. (Doc. 40). Plaintiff places multiple documents in each Tab. The Appendix pages are not numbered. Tab #2 contains multiple documents which are never referenced in the Statement of Facts (Doc. 40). Tab #2 is duplicated. (Doc. 40). Tab #3 appears twice with different documents behind each Tab #3. (Doc. 40). The depositions of Officers Bricklin, Harvey and Paige are not provided until the Reply (Doc. 49). Many deposition references have no page and line citation (Doc 40 at paragraphs 32, 37, 40). Plaintiff fails to comply with L.R.Civ. 56.1(a).

Plaintiff also fails to comply with L.R.Civ. 56(e) which states in pertinent part: “memoranda of law filed in support of a motion for summary judgment . . . must include citations to the specific paragraph in the statement of facts that supports assertions made in the memoranda . . . .” Plaintiff’s Motion and Memorandum (Docs. 38 and 39) contain no citations to any specific paragraph of the Statement of Facts (Doc. 40). See Rule 56(c) and (e), Fed. R. Civ. P.

The Court has spent hours deciphering Plaintiff’s Motion, Memorandum, and Statement of Facts. Only because the Court has done so, the Motion to Strike (Doc. 44) is denied. The Court will proceed to the merits of each federal claim. The Motion for Leave to File Memorandum of Law in Support of Motion for Summary Judgment in Excess of Page Limit (Doc. 46) is granted on the grounds of judicial economy rather than for good cause shown. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). The Court is not confident that requiring Plaintiff to refile his motion for summary judgment in compliance with the Federal Rules of Civil Procedure and Local Rules would result in greater clarity of the record.

Legal Standard for Summary Judgment

Summary judgment is appropriate if the evidence, when reviewed in a light most favorable to the non-moving party, demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law determines which facts are material in a case and “only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the nonmoving party must show that the genuine factual issues “‘can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’” Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9thCir. 1987) (quoting Anderson, 477 U.S. at 250).

Because “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, . . . [t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor” at the summary judgment stage. Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999) (“Issues of credibility, including questions of intent, should be left to the jury.”) (citations omitted).

When moving for summary judgment, the burden of proof initially rests with the moving party to present the basis for his motion and to identify those portions of the record and affidavits that he believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant fails to carry his initial burden of production, the non-movant need not produce anything further. The motion for summary judgment would then fail. However, if the movant meets his initial burden of production, then the burden shifts to the non-moving party to show that a genuine issue of material fact exists and that the movant is not entitled to judgment as a matter of law. Anderson, 477 U.S. at 248, 250; Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in his favor. First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). However, he ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.