United States District Court, D. Arizona
A. BOWMAN UNITED STATES MAGISTRATE JUDGE.
before the Court is the defendants' “Motion for
reconsideration of order denying defendants' motion for
partial summary judgment on plaintiffs' class-of-one
claim (Doc. 295) or, in the alternative, for clarification of
this Court's ruling, ” filed on June 20, 2018.
pending motion, the defendants argue that the Court erred in
distinguishing this case from Engquist v. Oregon
Dep't. of Agr., 553 U.S. 591 (2008). (Doc. 299 at
3:4-15). They believe that the Court should not have
recognized a difference between a defendant city acting as an
employer and as an administrator (of HAP contracts).
Id. The defendants also argue that the Court was
mistaken in finding that the plaintiffs' class-of-one
claim was not barred because of the issue of fact as to
whether the HAP agreements were withdrawn as an exercise of
discretion or out of personal animus. Id. at
3:17-4:5. The defendants finally argue that the Court should
have required the plaintiffs to show that they were treated
differently from similarly situated individuals. Id.
at 5:23- 6:22. In the alternative, they request clarification
on the issue of liability on the class-of-one claim.
Court denies the defendants' motion because it puts
forward arguments that were, or could have been, raised
on September 14, 2017, the defendants filed a motion for
partial summary judgment. (Doc. 217) The Court granted the
motion in part and denied it in part on June 5, 2018. (Doc.
295) The defendants moved for an extension of the deadline
for filing a motion for reconsideration on June 12, 2018.
(Doc. 298) The motion for extension was granted nunc pro
tunc and the motion for reconsideration was filed on
June 20, 2018. (Doc. 299)
motion for reconsideration is appropriate where the district
court “(1) is presented with newly discovered evidence,
(2) committed clear error or the initial decision was
manifestly unjust, or (3) if there is an intervening change
in controlling law.” School Dist. No. 1J, Multnomah
County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.
1993); see also LRCiv 7.2(g). Such motions should
not be used for the purpose of asking a court “to
rethink what the court had already thought through - rightly
or wrongly.” Defenders of Wildlife v. Browner,
909 F.Supp. 1342, 1351 (D. Ariz. 1995); see also United
States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz.
1998). Nor may they be used to “raise arguments or
present evidence for the first time when they could
reasonably have been raised earlier in the litigation.”
Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d
877, 890 (9th Cir. 2000). Mere disagreement with a previous
order is an insufficient basis for reconsideration. See
Leong v. Hilton Hotels Corp., 689 F.Supp. 1572, 1573 (D.
Haw. 1988); Rowe ex rel. Rowe v. Bankers Life & Cas.
Co., 572 F.Supp.2d 1138, 1147 (D. Ariz. 2008), clarified
on denial of reconsideration (Sept. 17, 2008).
defendants argue first that they are entitled to summary
judgment under Engquist. See Engquist v. Oregon
Dep't. of Agr., 553 U.S. 591 (2008). In that case,
the Supreme Court explained that class-of-one claims based on
“arbitrary, vindictive and malicious reasons” are
not permitted in the employment context. 553 U.S. at 594-595.
Engquist teaches that personality conflicts and the
like are a valid problem in an employment context, but they
cannot interfere with “arms-length government
decisions.” Id. at 604. Constant review of
day-to-day discretionary acts would undermine government
functioning. Id. at 607.
defendants explain that the Ninth Circuit applies
Engquist past the employment context into any
“forms of state action that by their nature involve
discretionary decision making based on a vast array of
subjective, individualized assessments.” Towery v.
Brewer, 672 F.3d 650, 660 (9th Cir. 2012) (execution
protocol). (Doc. 299 at 7:19-8:3) Towery also
precludes class-of-one claims “absent any pattern of
generally exercising the discretion in a particular manner
while treating one individual differently and
detrimentally.” 672 F.3d at 660-61. The defendants also
note that both Engquist and Towery
emphasize the type of government action, not the motive.
(Doc. 299, pg. 8)
defendants support their claim by stating that Congress gives
the defendant city discretion to determine Section 8
participation under 24 C.F.R. § 982.306, which makes
such decisions unreviewable. (Doc. 299, pg. 8). Thus, review
of the decision by the Court “will have undone
Congress's (and the States') careful work.”
Engquist, 553 U.S. at 607.
defendants further believe that Towery precludes the
class-of-one claim because the plaintiffs have no evidence of
a pattern by the defendants of rescinding contracts in a
particular way and treating them differently and
detrimentally. Further, they argue that the plaintiffs have
not been treated detrimentally at all, because they had no
right to Section 8 participation and the defendants have
compensated them for the inconvenience.
defendants allege no new evidence. Engquist and
Towery were both decided before the defendants'
original motion for summary judgment (doc. 22), so there has
been no change in controlling law. The defendants use
language from LRCiv 7.2(g), stating that the court
“misapprehended” Engquist. (Doc. 299 at
3) Presumably, this is a reference to the “clear
error” or “manifestly unjust” standard