United States District Court, D. Arizona
Matthew V. Parker, Plaintiff,
v.
State of Arizona, et al., Defendants. v.
ORDER
Dominic W. Lanza United Slates District Judge
Pending
before the Court are (1) Parker's “motion to amend,
modify and/or vacate or grant relief from portions of the
prior amended order” (Doc. 166) and (2) Defendants'
motion to strike Parker's motion (Doc. 168), which Parker
opposes (Doc. 169). As explained below, both motions will be
denied.
BACKGROUND
On May
13, 2019, the Court issued an amended order that granted in
part, and denied in part, Defendants' motion for summary
judgment. (Doc. 165.) Specifically, the Court denied summary
judgment on Count One (reasonable accommodation) due to the
presence of a factual dispute as to whether Parker made an
accommodation request to Gee, a member of the AGO's human
resources office, on October 28, 2014. (Id. at
6-12.) However, as for Count Two (retaliation), the Court
granted summary judgment because (1) of the nine adverse
employment actions identified in Parker's complaint,
Parker hadn't proffered sufficient evidence of three of
them[1]
and four others simply don't constitute adverse actions,
[2] and
(2) as for the remaining two adverse actions (termination and
forwarding allegations to AZ Post), Defendants had proffered
legitimate reasons that no reasonable jury could deem
pretextual. (Id. at 13-20.)
On June
10, 2019, Parker filed a “motion to amend, modify
and/or vacate or grant relief from portions of the prior
amended order.” (Doc. 166.) In this motion, Parker asks
the Court to reconsider two aspects of its May 13 order: (1)
the portion of the discussion of Count One addressing the
applicability of the sham affidavit doctrine, and (2) the
decision to grant summary judgment as to Count Two.
(Id. at 6-13.) Parker contends that such
reconsideration is authorized by Rules 54(b), 59(e), and
60(b)(1). (Id. at 1-6.)
On June
21, 2019, Defendants filed a motion to strike Parker's
motion. (Doc. 168.) They contend that Parker's motion
“is mischaracterized and cites to inapplicable Rules in
an effort to avoid the fact it is a Motion for
Reconsideration” and that the motion is therefore
untimely because motions for reconsideration must be filed
within 14 days of when the challenged order was issued.
(Id.) Parker has since filed an opposition to the
motion to strike. (Doc. 169.)
ANALYSIS
I.
Parker's Motion
Parker's
motion will be denied. First, as Defendants correctly note,
Parker's motion is a request for reconsideration. Such
requests are governed by Local Rule 7.2(g) and must, absent
good cause, be filed within 14 days of when the challenged
order was issued. Here, Parker seeks to challenge an amended
summary judgment order that was issued on May 13, 2019. He
was therefore required to file his motion by May 27, 2019.
The pending motion, filed on June 10, 2019, was untimely, and
Parker's justifications for the late filing (Doc. 169)
don't amount to good cause.
This
conclusion is not affected by Parker's invocation of
Rules 54(b), 59(e), and 60(b)(1). As an initial matter,
Parker's reliance on Rules 59(e) and 60(b)(1) is
misplaced. Those rules only apply when a party seeks
reconsideration of a final judgment. The May 13, 2019 order
isn't a final judgment. See, e.g., Ali v. Carnegie
Instit. of Wash., 309 F.R.D. 77, 80 (D.D.C. 2015)
(“The Federal Rules of Civil Procedure provide three
avenues for seeking reconsideration of judicial decisions.
The first is Rule 54(b), which permits reconsideration of
interlocutory orders . . . . Whereas Rule 54 governs
reconsideration of interlocutory orders, Rules 59(e) and
60(b) dictate when a party may obtain reconsideration of a
final judgment.”). As for Rule 54(b), the District of
Arizona adopted Local Rule 7.2(g) to implement and supplement
it. Thus, a litigant seeking relief under Rule 54(b) must
comply with Local Rule 7.2(g)'s requirements, which
Parker failed to do here. See, e.g., Marketquest Group,
Inc. v. Bic Corp., 2014 WL 3726610, *5 (S.D. Cal. 2014)
(“In addition to [Rule 54(b)'s] substantive
standards, Civil Local Rule 7.1.i.1 requires a moving party
to submit an affidavit or certified statement of an attorney
. . . .”); Arnold v. Melwani, 2012 WL 4296342,
*3 (D. Guam 2012) (“Several districts in the Ninth
Circuit have adopted local rules governing reconsideration of
interlocutory orders.”); United States ex rel.
Scott v. Actus Lend Lease, LLC, 2011 WL 13176749, *3
(C.D. Cal. 2011) (“In the Central District of
California, Local Rule 7-18 supplements Rule 54(b) and states
that a motion for reconsideration of the decision for any
motion may only be made on [certain enumerated] grounds . . .
.”).
Second,
Local Rule 7.2(g) states that a motion for reconsideration
ordinarily must be based on “new facts or legal
authority that could not have been brought to [the
Court's] attention earlier with reasonable
diligence” and may not “repeat any oral or
written argument made by the movant . . . in opposition to
the motion that resulted in the Order.” Here, most if
not all of the arguments that Parker seeks to raise in his
motion for reconsideration are arguments that he also raised
in his opposition to Defendants' motion for summary
judgment.
Third,
and finally, to the extent Parker is making a “manifest
error” claim, his arguments fail on the merits. As for
the “sham affidavit doctrine” analysis pertaining
to Count One, Parker contends that “[t]he Court
incorrectly determined from the record before it that Parker
had testified in his workers compensation deposition that he
did not inform his supervisors that . . . he wanted a
transfer from [the BRC] assignment.” (Doc. 166 at 6.)
This argument is unavailing. The transcript from the
workers' compensation proceeding reveals that Parker told
Rubalcava in October 2014 that “I'm going to keep
working and I'm going to see how it goes” and then
told Loftus in December 2014 that “You know, I
can't work on this case anymore.” (Doc. 165 at 7.)
Those statements are inconsistent with the notion that Parker
actually told both Rubalcava and Loftus in October 2014 that
he wanted to be removed from the BRC case as a reasonable
accommodation.
As for
Count Two, Parker begins by arguing that “the Court
erred in treating and analyzing each of the nine adverse
employment actions . . . as separate discrete acts rather
than a collective continuing pattern of adverse
actions.” (Doc. 166 at 10.) In fact, Parker made this
exact argument when opposing Defendants' summary judgment
motion (see Doc. 150), and the Court specifically
addressed and rejected it in the May 13, 2019 order
(see Doc. 165 at 20 n.12). Next, Parker challenges
the Court's conclusion that he failed to produce legally
sufficient evidence to support the first alleged adverse
employment action (hyper-scrutiny). (Doc. 166 at 11-12.) This
argument lacks merit. The sole piece of evidence in the
summary judgment record on this point was a paragraph in
Parker's declaration asserting that Loftus
“hyper-scrutinized my work and became unreasonably
critical of me.” The Court stands by its earlier
conclusion that “[t]his is far too conclusory to
suffice-there is no detail as to what the
‘hyperscrutiny' and ‘unreasonable
criticisms' entailed, how often they occurred, whether
they were repeated to others, and what impact they had on
Parker. Thus, although the Court is mindful of
Ray's admonition that the concept of
‘adverse employment actions' should be construed
broadly, Parker's claim here fails because he simply
hasn't met his burden of production.” (Doc. 165 at
15.) Finally, Parker challenges the Court's conclusion
that Defendants had a legitimate, non-pretextual reason for
forwarding their concerns to AZ Post. (Doc. 166 at 12-13.)
The Court stands by its earlier analysis of this issue, too.
(Doc. 165 at 19-20.)
II.
Defendan ...