United States District Court, D. Arizona
A. Teilborg, Senior United States District Judge
before the Court is Plaintiffs Brenda Biebrich and Heidi
Davis's (collectively “Plaintiffs”) Motion
for New Trial (“Motion, ” Doc. 23) submitted
pursuant to Federal Rule of Civil Procedure
(“Rule”) 59(a). Defendants Colleen
O'Donnell-Smith, Jennifer Hunter, Sharon Herndon, and
Rebekah Scott (individually and collectively,
“Defendants”) filed a timely Response (Doc. 24).
The Court now rules on the Motion.
October 23, 2018, the Court granted Defendants' Motion to
Dismiss on absolute immunity grounds and the Clerk of Court
entered judgment accordingly. (“Order, ” Doc. 21;
Doc. 22). Defendants were Arizona Department of Child Safety
(“DCS”) employees and Assistant Attorneys General
representing DCS. (“Compl., ” Doc. 7 ¶¶
3-6). Plaintiffs' underlying dispute stems from
Defendants' preparation and filing of an allegedly
improper motion for sanctions against Plaintiffs pursuant to
Arizona Revised Statutes §§ 8-542 and 8-807 in a
collateral matter. (Id. ¶ 58). The Court
discussed the background facts in its previous Order, and
need not repeat them all here. (See Doc. 21 at 2-3).
“Plaintiffs submit their motion for new trial pursuant
to Rule 59(a), ” a motion for reconsideration of
dismissal is more appropriately brought under Rule 59(e) or
Rule 60(b). See Motorola, Inc. v. J.B. Rodgers Mech.
Contractors, 215 F.R.D. 581, 582 n.1 (D. Ariz. 2003)
(noting that Rules 59(e) and 60(b) apply to reconsideration
of “final judgments and appealable interlocutory
orders” (citation omitted)); see also United States
v. Shiozawa, No. 5:12-CV-02025-LHK, 2014 WL 522001, at
*1 (N.D. Cal. Jan. 2, 2014) (citing Merrill v. Cnty. of
Madera, 389 Fed.Appx. 613, 615 (9th Cir. 2010)
(unpublished) (“a Rule 59(a) motion for new trial is
not available on claims or causes of actions for which
Plaintiffs never received a trial”)). Because
Plaintiffs seek “an Order altering or amending the
Judgment in this case and the Motion was filed within 28 days
of the entry of Judgment, the Court will construe
Plaintiff[s'] Motion for Reconsideration as having been
brought pursuant to Rule 59(e).” Shaka v.
Ryan, No. CV 15-0050-PHX-SMM, 2015 WL 4162598, at *1 (D.
Ariz. July 9, 2015); see also Shapiro ex rel. Shapiro v.
Paradise Valley Unified Sch. Dist. No. 69, 374 F.3d 857,
863 (9th Cir. 2004) (“a timely filed motion for
reconsideration . . . is construed as a motion to alter or
amend a judgment under Rule 59(e)”) (citation omitted).
Rule 59(e) permits a district court to reconsider and amend a
previous order, the rule offers an ‘extraordinary
remedy, to be used sparingly in the interests of finality and
conservation of judicial resources.'” Kona
Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890
(9th Cir. 2000) (quoting 12 James W. Moore et al.,
Moore's Federal Practice § 59.30). A
district court has considerable discretion to grant a Rule
59(e) motion to alter or amend judgment if: “1) the
motion is necessary to correct manifest errors of law or fact
upon which the judgment is based; 2) the moving party
presents newly discovered or previously unavailable evidence;
3) the motion is necessary to prevent manifest injustice; or
4) there is an intervening change in controlling law.”
Turner v. Burlington N. Santa Fe R. Co., 338 F.3d
1058, 1063 (9th Cir. 2003) (internal quotation marks and
citation omitted)). However, a motion for reconsideration
should not “be used to ask the court to rethink what
the court had already thought through-rightly or
wrongly.” Smith v. Ryan, No. CV
12-318-PHX-PGR, 2014 WL 2452893, at *1 (D. Ariz. June 2,
2014) (citation omitted). To be sure, a Rule 59(e) motion
“may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been made prior
to the entry of judgment.” Exxon Shipping Co. v.
Baker, 554 U.S. 471, 485 n.5 (2008).
the pending Motion does not present any “newly
discovered or previously unavailable evidence, ”
contend that reconsideration of the Court's Order
granting dismissal is necessary to “prevent manifest
injustice, ” or argue that there is an
“intervening change in controlling law.”
Turner, 338 F.3d at 1063. Rather, Plaintiffs
implicitly argue that the Court's Order was manifestly
erroneous by arguing that the Court's determination that
Defendants are entitled to absolute prosecutorial immunity is
incorrect. Specifically, Plaintiffs state that “[t]he
[C]ourt erred” in recognizing Defendants'
“unique [government] role” based on
Defendants' positions as lawyers representing DCS and DCS
workers assisting in the process. (Doc. 23 at 4). Plaintiffs
continue “that Defendants were [not] in the specific
position to enforce the statutes within [Arizona Revised
Statutes] Title 8 relating to DCS” because nothing in
the relevant DCS statutes specifically “authorizes DCS
or its employees (or lawyers) to initiate and pursue criminal
prosecutions or to seek criminal sanctions.”
(Id.). The argument follows that Defendants are not
entitled to absolute prosecutorial immunity because their
activities exceeded the scope of their authority.
Uniquely Government Role
argue that “[c]riminal prosecutors, not Department of
Child Safety lawyers in Juvenile Court, are the government
representatives with the unique ‘prosecutorial
role' to seek the criminal sanctions authorized by A.R.S.
§ 8-542 and A.R.S. § 8-807.” (Doc. 23 at 4).
As the Court reasoned in its previous Order, however,
prosecutorial immunity attaches to “the nature of the
function performed, not the identity of the actor who
performed it.” Kalina v. Fletcher, 522 U.S.
118, 127 (1997) (quoting Forrester v. White, 484
U.S. 219, 229 (1988)); (see also Doc. 21 at 4-5).
The Court's Order also clarified that “courts
routinely hold that absolute prosecutorial immunity applies
to actors outside of the position of prosecutor, and even to
individuals who are not attorneys.” (Doc. 21 at 3
(citing Meyers v. Contra Costa Cty. Dep't of Soc.
Servs., 812 F.2d 1154, 1156 (9th Cir. 1987) (holding
that a social worker was entitled to absolute prosecutorial
immunity for his role in the initiation of dependency
proceedings)); see also Olsen v. Idaho State Bd. Of
Med., 363 F.3d 916, 919 (9th Cir. 2004) (noting that the
doctrine extends to cover non-prosecutors who engage in
Plaintiffs argue that, because “the DCS statutes at
issue are criminal in nature” and “have no civil
remedies, ” Defendants acted outside their authority.
(Doc. 23 at 5).Plaintiffs continue that this action
exceeded Defendants' authority because Defendants were
not authorized “to initiate and pursue criminal
prosecutions or to seek criminal sanctions.”
(Id. at 4). Elsewhere, however, Plaintiffs state
that Defendants were “seeking unauthorized
civil remedies” in the trial court.
(Id. at 5 (emphasis added)). Nevertheless, it is
undisputed that Defendants “were pursuing sanctions in
Juvenile Court against Plaintiffs for alleged violations of
the Juvenile Code relating to confidentiality of juvenile
records.” (Doc. 24 at 3). Whether these sanctions were
civil or criminal is nature is immaterial to whether
Defendants fulfilled a uniquely government role in attempting
to enforce DCS statutes in court. (Compare Doc. 21
at 5 with Doc. 24 at 3). This holds true even if
Defendants' attempt was misguided and the motion was
ultimately denied by the trial court. See Challenge, Inc.
v. State, 673 P.2d 944, 948 (Ariz.Ct.App. 1983) (holding
that a prosecutor retains absolute immunity even when filing
a “baseless” suit).
Court previously reasoned:
Regardless, the Court sees the purpose of these statutes as
protecting the interests of juveniles in dependency
proceedings; a task which Defendants were uniquely assigned
to carry out as DCS employees or counsel for DCS. Lorenz
v. State, 364 P.3d 475, 477 (Ariz.Ct.App. 2015)
(explaining that statutes governing dependency proceedings
“make clear that the intent is to protect dependent
children” (citing Ariz. Rev. Stat. Ann. § 8-451(B)
(setting forth that “[t]he primary ...