United States District Court, D. Arizona
ORDER
HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE.
Before
this Court is Plaintiffs' Motion for Reconsideration of
Order (Doc. 236) Granting Partial Summary Judgment to
Individual Defendants (“Motion for
Reconsideration”).[1] (Doc. 237) On March 28, 2019, the Court
issued an Order granting in part Defendants' Motion for
Partial Summary Judgment. (Docs. 215, 236) Plaintiffs request
that this Court reconsider its ruling in favor of summary
judgment for Claims I, II, and XI due to plain errors of law.
(Doc. 237 at 1) On April 18, 2019, at the request of the
Court (Doc. 241), Defendants filed a response, asserting that
Plaintiffs improperly argued issues in the Motion for
Reconsideration that could have been raised in their response
to the Motion for Partial Summary Judgment in violation of
Local Rule of Civil Procedure 7.2(g). (Doc. 243 at 2)
Additionally, Defendants argue Plaintiffs failed to show that
this Court engaged in “manifest error” and
therefore the Court should not reconsider its Order. (Doc.
243 at 5)
Motions
for reconsideration are disfavored. LRCiv 7.2(g). A motion
for reconsideration will be granted only where the 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.” Sch. Dist. No. 1J, Multnomah
Cty., Or., 5 F.3d at 1263. “A manifest error is
not demonstrated by the disappointment of the losing party[,
] [i]t is the wholesale disregard, misapplication, or failure
to recognize controlling precedent.” Oto v. Metro.
Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)
(internal citation and quotation omitted). Plaintiffs fail to
state a standard of review for reconsideration in their
motion, and more importantly, they fail to meet this high
standard. Guillen v. Thompson, No. CV
08-1279-PHX-MHM, 2010 WL 3239419, at *2 (D. Ariz. Aug. 16,
2010) (“Mere disagreement with a previous order is an
insufficient basis for reconsideration.”). For the
following reasons, the Court declines to reconsider the Order
granting summary judgment.
I.
Claim I: Malicious Prosecution Under Section 1983
Plaintiffs
argue “there was no legal basis to grant qualified
immunity for malicious prosecution notwithstanding that there
was a basis to grant qualified immunity for wrongful
arrest.” (Doc. 237 at 3) In response, Defendants
maintain that this Court was justified in granting qualified
immunity for both malicious prosecution and wrongful arrest
because the grand jury's finding of probable cause
provided a complete defense to both claims. (Doc. 243 at 2)
Further, Defendants argue that Plaintiffs improperly pled two
distinct claims under the same count in the Second Amended
Complaint, and any confusion resulting from the mispleading
should be construed against Plaintiffs. (Doc. 243 at 2)
When
alleging malicious prosecution in a § 1983 claim, a
plaintiff “must show that the defendants prosecuted him
with malice and without probable cause, and that they did so
for the purpose of denying him equal protection or another
specific constitutional right.” Awabdy v. City of
Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (internal
citation and quotation omitted). The Awabdy court
explained:
Ordinarily, the decision to file a criminal complaint is
presumed to result from an independent determination on the
part of the prosecutor, and thus, precludes liability for
those who participated in the investigation or filed a report
that resulted in the initiation of proceedings. . . .
However, the presumption of prosecutorial independence does
not bar a subsequent § 1983 claim against state or local
officials who improperly exerted pressure on the prosecutor,
knowingly provided misinformation to him, concealed
exculpatory evidence, or otherwise engaged in wrongful or bad
faith conduct that was actively instrumental in causing the
initiation of legal proceedings.
Id. at 1067.
After
Awabdy, the Ninth Circuit clarified the requirement
for bringing a malicious prosecution claim against a state or
local official by stating, “a showing of a retaliatory
motive on the part of an official urging prosecution combined
with an absence of probable cause supporting the
prosecutor's decision will suffice to rebut the
presumption of regularity and settle the [prosecutorial
independence] issue.” Beck v. City of Upland,
527 F.3d 853, 865 (9th Cir. 2008).
Plaintiffs
alleged in the Second Amended Complaint that
“Defendants' decisions to provide false and/or
misleading affidavits and grand jury testimony were
wrongfully motivated by: (a) animus towards individuals with
Jewish ancestry; and (b) an intention to retaliate for Mr.
Frimmel and Mrs. Norton cooperating with the Department of
Justice and discourage further cooperation.” (Doc. 23
at 29-31) In support of their allegations, Plaintiffs cite to
a February 18, 2014 conversation between Defendant Henderson
and Denee Ishak. (Doc. 23 at 29-31) In the conversation,
Henderson advised Ishak that he did not believe the criminal
case would go to trial. Henderson stated that he believed
Plaintiff Frimmel to be “pretty tight with his
money.” In response, Ishak agreed and stated
“He's Jewish. We know.” Henderson then
“laughed” and stated “[w]e'll see what,
what happens but I doubt it's gonna go to trial.”
In
Plaintiffs' response to the Motion for Partial Summary
Judgment, they do not present any other facts to support
their assertion that Defendants were “wrongfully
motivated” in providing false and/or misleading
affidavits. The exchange, on its own, is not sufficient to
create a genuine issue of material fact that Defendant
Henderson, and certainly not the other Defendants, was
motivated to falsify information in the affidavits by
“animus towards individuals with Jewish
ancestry.” Plaintiffs do not assert that any Defendant
knew of Plaintiff Frimmel's Jewish ancestry before the
February 18, 2014 conversation-well after the grand jury
indicted Plaintiffs-and the conversation does not support the
assertion that any of the Defendants acted with the required
malice to deprive Plaintiffs of a constitutional right
because of Jewish ancestry. Similarly, Plaintiffs
offer no specific facts in their response to the Motion for
Partial Summary Judgment to support the assertion that
Defendants engaged in malicious conduct because
Plaintiffs cooperated with the Department of Justice.
Therefore, regardless of the grand jury's finding of
probable cause, the Court will not reconsider its dismissal
of Count I for malicious prosecution.
II.
Claim II: Malicious Prosecution Under Arizona State
Law
Plaintiffs
argue the state law malicious prosecution claim is not barred
by the prosecutor's and grand jury's finding of
probable cause. (Doc. 237 at 3) Under Arizona law,
“[t]he civil tort of malicious prosecution includes
five elements: that the defendant (1) instituted a civil
action which was (2) motivated by malice, (3) begun [or
maintained] without probable cause, (4) terminated in
plaintiff's favor and (5) damaged plaintiff.”
Chalpin v. Snyder, 220 Ariz. 413, 418-19 (Ariz. App.
2008) (citation omitted). As explained before, Plaintiffs
failed to allege facts sufficient to show that Defendants
were motivated by malice. Therefore, we will not reconsider
the dismissal of Claim II for the malicious prosecution under
state law.
III.
Claim XI: Intentional Infliction of ...