Ariz. Attorneys for Criminal Justice v. Ducey, No. CV-17-01422-PHX-SPL
| Court | U.S. District Court — District of Arizona |
| Writing for the Court | Steven P. Logan, United States District Judge |
| Citation | 465 F.Supp.3d 978 |
| Docket Number | No. CV-17-01422-PHX-SPL |
| Decision Date | 09 June 2020 |
| Parties | ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE et al., Plaintiffs, v. DUCEY et al., Defendants. |
465 F.Supp.3d 978
ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE et al., Plaintiffs,
v.
DUCEY et al., Defendants.
No. CV-17-01422-PHX-SPL
United States District Court, D. Arizona.
Signed June 9, 2020
Andrew McNulty, Pro Hac Vice, David A. Lane, Pro Hac Vice, Killmer Lane & Newman LLP, Denver, CO, Dan W. Goldfine, Ian Matthew Fischer, Lewis Roca Rothgerber Christie LLP, Kathleen E. Brody, Mitchell Stein Carey Chapman PC, Jared G. Keenan, Martin Lieberman, ACLU, Phoenix, AZ, for Plaintiffs.
Carrie Ann Laliberte, Lisa Tewksbury Hauser, Bonnett Fairbourn Friedman & Balint PC, Phoenix, AZ, for Defendant Maret Vessella.
Nancy M. Bonnell, Office of the Attorney General, Phoenix, AZ, for Defendant Heston Silbert.
ORDER
Steven P. Logan, United States District Judge
Pending before the Court are Defendant Heston Silbert's ("Silbert") Motion
for Reconsideration (Doc. 193) ("Silbert's Motion for Reconsideration"),1 Silbert's Conditional Request for Certification for Appellate Review (Doc. 164) ("Silbert's Request for Certification"), Defendant Maret Vessella's ("Vessella") Motion for Reconsideration (Doc. 197) ("Vessella's Motion for Reconsideration"), and Vessella's Conditional Request for Certification for Appellate Review (Doc. 198) ("Vessella's Request for Certification"). All the motions and requests relate to the Court's February 27, 2020 order (the "Order"). All the pending motions are fully briefed. For the reasons that follow, the motions are granted and the requests are denied as moot.2
I. Background
On May 8, 2017, Plaintiffs, individual criminal-defense lawyers, investigators, and non-profit organization Arizona Attorneys for Criminal Justice, initiated this action (the "Original Complaint") challenging the constitutionality of Ariz. Rev. Stat. ("A.R.S.") § 13-4433(B), which prohibits criminal defense counsel from initiating contact with a victim. (Doc. 1) On June 26, 2017, the Attorney General of the State of Arizona (the "Attorney General") moved to dismiss the Original Complaint, arguing that the Plaintiffs did not have standing to bring the lawsuit. (Doc. 31) On March 30, 2018, the Court granted the Attorney General's motion to dismiss in part (the "Dismissal Order"). (Doc. 119) In granting the Attorney General's first motion to dismiss, the Court found that the Plaintiffs failed to "offer plausible allegations from which the Court can conclude that their injury is traceable to the actions of the Attorney General or the ambit of his enforcement authority" or show that the relief requested under the Original Complaint would redress the Plaintiffs’ alleged injury. (Doc. 119 at 6–9) Based on the allegations in the Original Complaint, the Court found that the Plaintiffs lacked standing to pursue their claims, but the Court provided the Plaintiffs with leave to amend the Original Complaint by a later deadline. (Doc. 119 at 9–11)
On May 4, 2018, the Plaintiffs filed an amended complaint (the "First Amended Complaint") seeking identical declaratory and injunctive relief that would prevent the Attorney General from enforcing A.R.S. § 13-4433(B). (Doc. 123) On May 25, 2018, the Attorney General filed a motion to dismiss the First Amended Complaint (the "Second Motion to Dismiss"), arguing that the amended pleading still failed to allege facts sufficient to demonstrate that the Plaintiffs had standing to bring their claims. (Doc. 126) On March 15, 2019, the Court granted the Attorney General's second motion to dismiss (the "Second Dismissal Order"). (Doc. 147) In doing so, the Court found that the Plaintiffs still failed to "offer plausible allegations from which the Court can conclude that the Plaintiffs’ injury is traceable to the actions of the Attorney General" or show that the relief requested under the First Amended Complaint would redress Plaintiff's alleged injury. (Doc. 147 at 4–7) Based on the allegations in the First Amended Complaint, the Court found that the Plaintiffs still lacked
standing to pursue their claims, but the Court provided the Plaintiffs with a second leave to amend the Original Complaint by a later deadline. (Doc. 147 at 7–8)
On April 26, 2019, Plaintiffs filed another amended complaint (the "Second Amended Complaint") seeking identical declaratory and injunctive relief but adding the State Bar of Arizona ("State Bar"), its Chief Bar Counsel, Maret Vessella ("Vessella"), and the director of the Arizona Department of Public Safety, Colonel Frank Milstead (respectively "DPS" and "Milstead") as defendants. (Doc. 150) On June 20, 2019, the State Bar and Vessella ("State Bar" and "Vessella") filed their Motion to Dismiss the Second Amended Complaint, arguing lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted (Doc. 162 at 1) (the "State Bar's Motion to Dismiss") and the Attorney General and Milstead filed their Joint Motion to Dismiss the Second Amended Complaint, arguing lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and failure to Join a Rule 19 Party (Doc. 164 at 3) (the "Attorney General's Third Motion to Dismiss"). The Court granted the Attorney General's Third Motion to Dismiss only as to the Attorney General, not Milstead, and denied the State Bar's Motion to Dismiss in full. (Doc. 191)
II. Legal Standard
A. Motions for Reconsideration
Reconsideration is disfavored and "appropriate only in rare circumstances." WildEarth Guardians v. United States Dep't of Justice , 283 F.Supp.3d 783, 795 n.11 (D. Ariz. June 21, 2017) ; see also Bergdale v. Countrywide Bank FSB , No. CV-12-8057-PCT-SMM, 2014 WL 12643162, at *2 (D. Ariz. May 23, 2014) ("[Reconsideration] motions should not be used for the purpose of asking a court to rethink what the court had already thought through-rightly or wrongly."). "[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities." Fed. R. Civ. P. 54(b). LRCiv 7.2(g)(1) sets forth the applicable standard for the Court to review both Motions for Reconsideration. Indeed, Federal Rules of Civil Procedure rules 59(e) and 60(b) are not applicable because a judgment was not entered as to either Silbert or Vessella. LRCiv 7.2(g)(1) states that "[t]he Court will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence." LRCiv 7.2(g)(1). More specifically, the motion
shall point out with specificity the matters that the movant believes were overlooked or misapprehended by the Court, any new matters being brought to the Court's attention for the first time and the reasons they were not presented earlier, and any specific modifications being sought in the Court's Order. No motion for reconsideration of an Order may repeat any oral or written argument made by the movant in support of or in opposition to the motion that resulted in the Order. Failure to comply with this subsection may be grounds for denial of the motion.
LRCiv 7.2(g)(1). Mere disagreement with an order is not a proper ground for a motion for reconsideration under LRCiv 7.2(g)(1). See, e.g. , Ariz. Dream Act Coal. v. Brewer , 945 F. Supp. 2d 1049, 1078 (D. Ariz. 2013) ("mere disagreement with an order is an insufficient basis for reconsideration."),
reversed and remanded on other grounds ; Ross v. Arpaio , 2008 WL 1776502, at *2 (D. Ariz. Apr. 15, 2008) (relying on the same principle).
B. FRCP 12(b)(1) and Article III Standing
Federal Rule of Civil Procedure 12(b)(1) "allows litigants to seek the dismissal of an action from federal court for lack of subject matter jurisdiction." Kinlichee v. United States , 929 F. Supp. 2d 951, 954 (D. Ariz. 2013) (citing Tosco Corp. v. Comtys. for a Better Env't , 236 F.3d 495, 499 (9th Cir. 2001) ). Allegations raised under FRCP 12(b)(1) should be addressed before other reasons for dismissal because if the complaint is dismissed for lack of subject matter jurisdiction, other defenses raised become moot. Kinlichee , 929 F. Supp. 2d at 954. A motion to dismiss for lack of subject matter jurisdiction under FRCP 12(b)(1) may attack either the allegations of the complaint as insufficient to confer upon the court subject matter jurisdiction or the existence of subject matter jurisdiction in fact. Renteria v. United States , 452 F. Supp. 2d 910, 919 (D. Ariz. 2006) (citing Thornhill Publ'g Co., Inc. v. General Tel. & Elecs. Corp. , 594 F.2d 730, 733 (9th Cir. 1979) ); Edison v. United States , 822 F.3d 510, 517 (9th Cir. 2016). When the motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction, all allegations of material fact are taken as true...
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