Dewalt Prods., Inc. v. City of Portland
| Decision Date | 26 August 2019 |
| Docket Number | Case No. 3:14-cv-1017-AC |
| Parties | DEWALT PRODUCTIONS, INC. an Oregon corporation, dba FONTAINE BLEAU, and RODNEY DEWALT, Plaintiffs, v. CITY OF PORTLAND, a municipal corporation, THERESA MARCHETTI, MARK KRUGER, MARK FRIEDMAN, DAVID JACKSON, AMY ARCHER, PAUL VAN ORDEN, ROBERT CRUSER, CHARLES HALES, and STEVEN MARKS, Defendants. |
| Court | U.S. District Court — District of Oregon |
Introduction
In this lawsuit, plaintiffs DeWalt Productions, Inc., dba Fontaine Bleau ("DPI"), and Rodney DeWalt ("DeWalt")(collectively "Plaintiffs") claim defendants, the City of Portland (the "City), Theresa Marchetti ("Marchetti"), Mark Kruger ("Kruger"), David Jackson ("Jackson"), and Charles Hales ("Hales")(collectively "City Defendants"),1 and Steven Marks ("Marks"), discriminated against them based on DeWalt's race, the type of music played at Plaintiffs' nightclub, the Fontaine Bleau ("Fontaine"), and the race of the Fontaine's customers. Currently before the court are summary judgment motions filed by the City Defendants and Marks, and a motion for partial summary judgment filed by Plaintiffs on their due process claims.
Plaintiffs failed to establish Defendants acted with the intent to discriminate against DPI based on its imputed racial identity as African-American, against DeWalt, as an African-American, or against either of them, based on the type of music played at the Fontaine. Accordingly, the City Defendants' and Marks's motions for summary judgment on Plaintiffs First Claim for Relief for violation of 42 U.S.C. § 1981, Fourth Claim for Relief for Equal Protection, Fifth Claim for Relief for a First Amendment violation based on protected expression, and Ninth Claim for Relief for violation of 42 U.S.C. § 2000d are granted.2 Because Plaintiffs' sole argument in support of their state law claims is based on evidence of discriminatory intent, the court's finding of lack of discriminatory intent is fatal to Plaintiffs' state law claims; thus, City Defendants' and Marks's motions for summary judgment on Plaintiffs" Tenth Claim for Relief for intentional interference with economic relations and Eleventh Claim for Relief for intentional infliction of emotional distress are also granted. Marks's decision to reinstate DPI's liquor license and issue a second emergencysuspension order did not necessarily delay a ruling on the merits of the suspension or harm Plaintiffs in any appreciable manner. Consequently Marks's motion for summary judgment on Plaintiffs' Second and Third Claims for Relief for procedural due process violations is granted, and Plaintiffs' motion for partial summary judgment on these claims is denied.
In their reply brief, the City Defendants object to the deposition and hearing transcripts offered by Plaintiffs without proper authentication, and declarations from witnesses not previously identified. The City Defendants also object to specific statements found in various declarations and references to newspaper articles as inadmissible hearsay.
Plaintiffs contend the objections should be overruled due to the City Defendants' failure to confer and submit a certification to that effect. Local Rule 56-1(b) expressly provides "[e]videntiary objections in a response or reply memorandum are subject to the certification requirement of LR 7-1(a)." Local Rule 7-1(a) provides, in pertinent part:
Local Rule 7-1 governs motions and therefore, on its face, is inapplicable to evidentiary objections asserted in a responsive pleading. While Local Rule 56(b) imposes the requirements of Local Rule 7-1 on evidentiary objections asserted in a responsive pleading, it is not entirely unreasonable for an attorney to mistakenly rely on the express language of Local Rule7-1 and omit a certification with regard to objections raised in a responsive pleading, rather than a motion. Because Local Rule 7-1(a)(3) affords the court discretion in addressing a party's failure to meet the certification requirement, the court finds denial of the evidentiary objections on this ground is not appropriate. Moreover, Plaintiffs' response to the evidentiary objections makes clear conferral would have not have resolved the identified disputes.
The evidence presented in support of or in opposition to a motion for summary judgment must be based on personal knowledge, properly authenticated, and admissible under the Federal Rules of Evidence. FED. R. CIV. P. 56(c) (2018). A party filing a motion for summary judgment will generally support that motion with affidavits or declarations. Rule 56 requires that the affidavits or declarations "be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." FED. R. CIV. P. 56(c)(4). The court must determine what evidence is admissible, relevant, and substantive. FED. R. EVID. 104 (2018). In ruling on a motion for summary judgment, the court will consider the admissibility of the proffered evidence's contents, not its form. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)( ); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)("We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.").
The City Defendants assert excerpts offered by Plaintiffs from the depositions of Robert Cruser ("Cruser"), Mark Friedman ("Friedman"), Paul Van Orden ("Van Orden"), Allison Webster ("Webster"), and Chad Stover ("Stover"), and from the December 4, 2013 emergency suspension hearing held by the Oregon Liquor Control Commission ("OLCC") before Webster (the "Hearing"), lack the requisite authentication. Plaintiffs argue the objections are improper under Federal Rules of Civil Procedure 56(c)(2), which provides: "A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Plaintiffs claim because they can offer the excerpts, or the testimony contained therein, in an admissible form at trial, the City Defendants' objection is without merit.
The court need not consider Plaintiffs' argument because, with the exception of the Cruser deposition, the deposition excerpts offered by Plaintiffs have been authenticated by either the City Defendants or Marks (collectively "Defendants"). "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." FED. R. EVID. 901(a) (2018). A deposition excerpt is ordinarily authenticated "by attaching the cover page of the deposition and the reporter's certification to every deposition extract submitted." Orr v. Bank of America, 285 F.3d 764, 774 (9th Cir. 2002). However, "when a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties, subject to the right of any party to present evidence to the ultimate fact-finder disputing its authenticity." Orr, 285 F.3d at 776. The City Defendants offered properly authenticated excerpts from the depositions of Van Orden and Stover, and Marks offered properlyauthenticated excerpts from the depositions of Friedman and Webster, and the Hearing. The excerpts offered by Plaintiffs are consistent, both in content and appearance, with the properly authenticated excerpts offered by the City Defendants and Marks. Consequently, the court will consider Plaintiffs' deposition and hearing excerpts in this opinion.
Only Plaintiffs offered excerpts of the Cruser deposition. However, the City Defendants offered the declaration of Cruser. A comparison of the excerpts to the declaration reveals the relevant information in the deposition excerpts is also found in the declaration. Accordingly, the material contained in the Cruser deposition excerpts are properly before the court through the Cruser declaration. The City Defendants' objections to the deposition excerpts offered by Plaintiffs are overruled.
The excerpts offered by Plaintiffs are not highlighted to identify the portions of the transcripts they deem material and, on numerous occasions, fail to include the questions to which the witness is responding, making the context of the testimony unclear. See United States District Court, Oregon, Local Rule ("LR") 56-1, "Motion for Summary Judgment" ( ); Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010) ("Courts have no independent duty to scour the record in search of a genuine issue of triable fact, and may rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment." (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)(internal quotation marks omitted). Moreover, the Plaintiffs have failed to offer exhibits about which the witnesses are testifying. To the extent the relevant testimony, and the context in which the testimony was given, is clear from the excerpts offered by Pla...
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