Tate v. Lau
| Decision Date | 11 October 1994 |
| Docket Number | No. CV-S-93-1036-PMP (RJJ).,CV-S-93-1036-PMP (RJJ). |
| Parties | James Sherman TATE, Jr., M.D., and the National Alliance Against Racism and Political Oppression, Las Vegas Affiliate, Plaintiffs, v. Cheryl A. LAU, Secretary of State; Dale A.R. Erquiaga, Deputy Secretary of State; City of Las Vegas, Las Vegas City Attorney's Office, Beth Kadlec, Former Deputy City Attorney; Las Vegas Metropolitan Police Department; Officer J. Pillette; Sgt. G. Hood; Officer Fisher, Nevada Highway Patrol; Trooper Kevin Moore; Sgt. Philip Dart; Nevada Department of Motor Vehicles; Robert G. Anselmo, Deputy Director DMV; Tina Jodra, Supervisor II for DMV; Nevada Conference of Police and Sheriffs; O.C. Lee, President of Nevada Conference of Police and Sheriffs; Samuel R. Smith, Secretary/Treasurer of Nevada Conference of Police and Sheriffs; and Does I through L, individually and in their official capacities, Defendants. |
| Court | U.S. District Court — District of Nevada |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Geraldine Kirk-Hughes, Las Vegas, Lennox S. Hinds, Stevens, Hinds & White, P.C., New York City, for plaintiffs.
Lona Monson, Deputy City Atty., Las Vegas, for City of Las Vegas, Kadlec, Fisher.
Walter R. Cannon, Rawlings, Olson & Cannon, Las Vegas, NV for LVMPD, Pillette, Hood, NV Conf. of Police & Sheriffs, Lee & Smith.
Kateri Cavi, Deputy Atty. Gen., Carson City, NV for Lau, Erquiaga, DMV, Anselmo, Jodra, NHP, Moore, Dart.
In September 1990, Plaintiff Las Vegas Affiliate of the National Alliance Against Racism and Political Repression ("Alliance") began circulating a petition for a civilian control board for the Las Vegas Metropolitan Police Department ("Metro"). In October 1991, a copy of the petition ("Petition") was forwarded to the Secretary of State for filing. Defendant Dale A.R. Erquiaga, Deputy Secretary of State, returned the Petition with a letter dated October 24, 1991, stating that the Secretary of State only acts as a filing office and lacks the authorization to review petition language. See Affidavit of Dale A.R. Erquiaga, Exhibit 1 to Defendants Lau and Erquiaga's Motion for Summary Judgment (# 29) ("Erquiaga Affidavit"); see generally Plaintiffs' Amended Complaint (# 3). In December 1991 a copy of the Petition was again forwarded to the Secretary of State for filing; again the Secretary of State sent it back with a letter referring the Alliance to the county clerk's office. See Erquiaga Affidavit; see generally Plaintiffs' Amended Complaint (# 3).
Upon further clarification by counsel for Alliance, Defendant Erquiaga concluded that filing was required. See Erquiaga Affidavit. On April 13, 1992, the Secretary of State filed the Petition. See Erquiaga Affidavit. However, after receiving complaints regarding the form of petition being circulated, counsel for Alliance requested that Erquiaga review the circulated petition. Erquiaga explained that the two were not similar in language and signatures on the form not filed would not count towards the desired goal of amending the state statute. See Erquiaga Affidavit. Erquiaga allegedly failed to advise Alliance of the time limits to get the required number of signatures on the Petition in order to get the issue on the ballot. See Plaintiffs' Amended Complaint (# 3). On October 13, 1992, Plaintiff James Sherman Tate, Jr., M.D. ("Tate"), submitted all copies of the Petition to the Registrar of Voters for Clark County. See Erquiaga Affidavit. On October 16, 1992, the Registrar certified 26,463 signatures. The Secretary of State, determining that 32,596 signatures were required, deemed the initiative failed. See Erquiaga Affidavit. However, Alliance continued to gather signatures for the issue. See generally Plaintiffs' Amended Complaint (# 3).
On June 6, 1992, Tate, allegedly attempting to gather signatures in front of the Department of Motor Vehicles and Public Safety ("DMV"), was issued a citation for interfering with the peaceful conduct of business. See Exhibit 5 to Plaintiff's Opposition. On June 27, 1992, Tate was imprisoned for the same charge and was allegedly assaulted while in prison. See Plaintiffs' Amended Complaint (# 3).
In June 1992, the Nevada Conference of Police and Sheriffs issued a press release ("Press Release") signed by Defendants O.C. Lee and Samuel R. Smith, and quoting Tate. The Press Release called Plaintiff Tate a "biggot" (sic). See Exhibit 3 to Plaintiff's Opposition (# 41).
On February 15, 1994, the Plaintiffs Tate and the Alliance filed their Amended Complaint (# 3) alleging violations of 42 U.S.C. §§ 1983, 1985 and 1986. Several motions are presently before the Court.
The first is a Motion for Summary Judgment (# 28) submitted by Defendants Las Vegas Metropolitan Police Department, Nevada Conference of Police and Sheriffs, Sgt. G. Hood, O.C. Lee, and Samuel R. Smith, and filed on May 16, 1994.1 Defendants, by their Motion (# 28), also requested sanctions. Plaintiffs filed their Opposition (# 41) on July 26, 1994, and Defendants filed a Reply (# 50) on August 16, 1994.
Also before the Court is a Motion for Summary Judgment (# 29) submitted by Defendants Cheryl A. Lau, Secretary of State, and Dale A.R. Erquiaga, Deputy Secretary of State and filed on May 18, 1994. Plaintiffs filed their Opposition (# 42) on August 1, 1994, and Defendants filed a Reply (# 46) on August 11, 1994.
Also before the Court is Plaintiffs' Motion to Set Aside Judgment (# 47) filed on August 11, 1994. Defendants filed an Opposition (# 51) on August 25, 1994. No reply was filed.
Pursuant to Federal Rule of Civil Procedure 56, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
The party moving for summary judgment has the initial burden of showing the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). Once the movant's burden is met by presenting evidence which, if uncontroverted, would entitle the movant to a directed verdict at trial, the burden then shifts to the respondent to set forth specific facts demonstrating that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). If the factual context makes the respondent's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); California Arch. Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988).
If the party seeking summary judgment meets this burden, then summary judgment will be granted unless there is significant probative evidence tending to support the opponent's legal theory. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968); Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270 (9th Cir. 1979). Parties seeking to defeat summary judgment cannot stand on their pleadings once the movant has submitted affidavits or other similar materials. Affidavits that do not affirmatively demonstrate personal knowledge are insufficient. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). Likewise, "legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment." Id.
A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the differing versions of the truth. See Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1305-06 (9th Cir. 1982); Admiralty Fund v. Jones, 677 F.2d 1289, 1293 (9th Cir.1982).
All facts and inferences drawn must be viewed in the light most favorable to the responding party when determining whether a genuine issue of material fact exists for summary judgment purposes. Poller v. CBS, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). After drawing inferences favorable to the respondent, summary judgment will be granted only if all reasonable inferences defeat the respondent's claims. Admiralty Fund v. Tabor, 677 F.2d 1297, 1298 (9th Cir.1982).
The trilogy of Supreme Court cases cited above establishes that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327, 106 S.Ct. at 2555 (quoting Fed.R.Civ.P. 1). See also Avia Group Int'l, Inc. v. L.A. Gear Cal., 853 F.2d 1557, 1560 (Fed.Cir.1988).
Initially, the Court finds it necessary to address a matter that arises from consideration of the instant Motions. Plaintiffs, in their Oppositions, argue that they have not had sufficient time to complete discovery in order to respond properly to this motion.2 However, the proper procedural vehicle for such an assertion is a motion pursuant to Fed.R.Civ.P. 56(f). Under Rule 56(f), it is possible for this Court to refuse to grant a party's motion for summary judgment on the ground that the opposing party may require additional time to conduct further discovery. Fed.R.Civ.P. 56(f...
To continue reading
Request your trial
-
Paiva v. City of Reno
...Davis v. Mason County, 927 F.2d 1473 (9th Cir.1991); see also Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir.1996); Tate v. Lau, 865 F.Supp. 681, 689 (D.Nev. 1994); Reynolds v. Borough of Avalon, 799 F.Supp. 442 (D.N.J.1992). Such potential is nowhere more manifest or more ominous than when ......
-
Slater v. Skyhawk Transportation, Inc., Civil Action No. 97-1853 (D. N.J. 5/4/1999)
...with Rule 11." Voice Sys. Marketing Co. v. Appropriate Technology Corp., 153 F.R.D. 117, 120 (E.D. Pa. 1994); see also Tate v. Lawu, 865 F. Supp. 681, 691 (D. Nev. 1994) ("Because Defendants' request was not made separately pursuant to Fed. R. Civ. P. 11(c)(1)(A), the Court will deny Defend......
-
Slater v. Skyhawk Transportation, Inc.
...with Rule 11." Voice Sys. Marketing Co. v. Appropriate Technology Corp., 153 F.R.D. 117, 120 (E.D. Pa. 1994); see also Tate v. Lawu, 865 F. Supp. 681, 691 (D. Nev. 1994) ("Because Defendants' request was not made separately pursuant to Fed. R. Civ. P. 11(c)(1)(A), the Court will deny Defend......
-
State ex rel. Charleston Area Medical Center, Inc. v. Kaufman
...under Rule 4(m), the provision of the federal rules which is parallel to Rule 4(l) of the West Virginia Rules of Civil Procedure. The court in Tate noted that mere inadvertence would not amount to good cause and denied the Considering our prior holdings on the office of a motion under Rule ......