United States District Court, D. Arizona
Honorable Roslyn O. Silver, Senior United States District
Jay Kennedy Johari, manager and operator of a bar in Tempe,
Arizona, alleges that, on three occasions, Defendants, who
are the City of Tempe and three members of the Tempe Police
Department, “specifically targeted Johari based on an
institutional grudge [Defendants] harbor against
him.” (Doc. 1). During the July 20, 2018, Interim
Status Conference, the Court discussed the parties'
anticipated motions for summary judgment. In doing so, the
Court informed the parties that, prior to filing a motion for
summary judgment, they should prepare a proposed statement of
undisputed facts in support of their motion and share it with
the opposing party to determine whether the facts included
are, in fact, undisputed. The Court stated that, if the
parties could not agree and the facts were disputed, then the
case would be set for trial. (July 20, 2018, Hr'g Tr.).
then drafted a proposed statement of
“uncontested” facts, which the Court assumes
counsel means are undisputed facts, and sent this to
Plaintiffs for review and comment. (Doc. 70-11). In response,
Plaintiffs appear to have wholly rejected Defendants'
statement of facts and submitted their own, completely
different statement of “undisputed facts.” (Docs.
70-11; 70-12). After further correspondence between the
parties, they failed to produce an agreed-upon statement of
undisputed facts, as ordered by this Court and which is the
only filing the Court can consider on a Rule 56 motion for
colloquy with counsel and instructions of the Court, during
the July 20, 2018, Interim Status Conference, included the
1. Mr. Dichter: So I'm confident that working together we
can get a basic set of facts that would be those - I
don't know exactly what his motion's going to raise
until I see it.
The Court: Okay.
Mr. Dichter: So I'm sure we can do that.
2. The Court to Mr. Niederbaumer: You're going to need to
set forth what you believe to be the undisputed facts first
on each of the issues. And then your position would be as a
matter of law based upon those undisputed facts you're
going to win on this legal issue. [ . . . ]
Mr. Niederbaumer: [ . . . ] I will agree with Mr. Dichter
that the facts are the facts. I just think when we apply the
particular law to it, we just come down on different
positions on what the law should read on those facts.
The Court: Okay.
Mr. Niederbaumer: [ . . . ] So I don't believe there are
really any facts that are in dispute as to - that have been
developed, but I do believe that there's a difference of
opinion as to how the law should be applied to those.
The Court: That's what I'm hearing from both of you.
3. The Court: I will tell you as I tell everyone, do not file
a Motion for Summary Judgment and a response where there are
disputed issues of fact.
4. The Court: I'm going back to what I ordered. You are
to resolve whether or not the facts are disputed. And you are
- I am going to order - I don't want to see a statement
of facts on these issues which ...