Free Motion for New Trial - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

KEITH M. KNOWLTON, L.L.C. 9920 S. Rural Road, Suite 108 PMB# 117 Tempe, Arizona 85284-4100 ( 480) 755-1777 FAX (480) 471-8956 Attorney for Plaintiffs K eith M. K nowlton - SBN 011565
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) RONALD DIBLE, and MEGAN DIBLE, ) husband and wife; ) ) Plaintiffs, ) ) vs. ) ) THE CITY OF CHANDLER, a municipality of ) the State of Arizona; THE CITY OF ) CHANDLER POLICE DEPARTMENT, a law ) ) enforcement agency of the City of Chandler; ) CHANDLER POLICE CHIEF BOBBY JOE ) HARRIS and JUDY HARRISS, husband and ) wife. ) ) Defendants. ) )

No. CV 03 -00249-PHX-JAT

PLAINTIFFS MOTION FOR NEW TRIAL ON AMENDED JUDGMENT (Assigned to the Hon. James A. Teilborg)

Plaintiffs, through undersigned Counsel, pursuant to Rule 59, respectfully request a new trial on the Amended Judgment entered on April 29, 2008. The Court committed error because Rule 60(a) relief was denied by the Ninth Circuit Court of Appeals, this Court does not have jurisdiction under Rule 60(a) after the matter is sent on appeal and Rule 60(a) only involve s clerical error. The failure to properly name a party to a judgment constitutes a substantive misidentification error that can only be corrected under Rule 60(b). Finally, the Court's original Judgment, upon information and belief,

Case 2:03-cv-00249-JAT

1 Document 186

Filed 05/08/2008

Page 1 of 7

1 2 3 4 5 6 7 8 9 10 11 12

was not mistakenly entered against Plaintiffs rather than Counsel. Upon information and belief, and based on the facts known to date, the Judgment was not clerical error but intentionally done by the Court. The Judgment was entered based on a specific order of the C ourt after review of the applications for attorneys' fees and the objections thereto. However, the action of the Court in submitting the Bar Complaint to the Arizona State Bar eight ( 8) calendar days after oral argument on appeal and correcting the Judgment after the Arizona State Bar decided not to take action against Counsel on the Bar C omplaint indicates that the original judgment was entered against Plaintiffs rather than Counsel and no bar complaint was filed to influence counsel not to represent Plaintiffs on appeal and that the reversal of those actions was done to retaliate against Counsel for his representation of Plaintiffs on appeal. Oral Argument took place before the Ninth Circuit Court of Appeals on June 11, 2007. Before oral argument, Counsel was asked by Katherine Baker whether the

13 14 15 16 17 18 19 20 21 22 23 24 25 26

Arizona State Bar had taken any action against Counsel. When she was informed Counsel had not heard anything, Katherine Baker immediately threatened Counsel that she would Contact the Court and have the complaint filed with the Arizona State Bar. After Oral argument, she again reiterated that she was contacting the Court and would make sure the Bar Complaint was submitted. Her actions were clearly me ant to intimidate Counsel and were done in retaliation for his representation of Plaintiffs at Oral Argument. The Complaint was sent to Arizona State Bar by the Court's staff on June 19,

2007, eight (8) calendar days after oral argument before the Ninth Circuit Court of
Appeals. The Court stated in Court he was going to refer the matter to the State B ar on

July 26, 2005. He did not do so for almost two years and did so right after oral argument
on appeal. Clearly the Court is not capable of making such mistakes and the actions taken were intentional. Further, the Court on June 28, 2005 found that it would award attorneys fees and costs against undersigned counsel. The Judgment on attorneys' fees was entered on

Case 2:03-cv-00249-JAT

2 Document 186

Filed 05/08/2008

Page 2 of 7

1 2 3 4 5 6 7 8 9 10 11 12

February 13, 2006 (entered after Plaintiffs had filed their Notice of Appeal on the merits of the case). The attorneys' fee judgment was not entered against Counsel, but was entered against Plaintiffs. The clear implication from the above actions, and the message sent and understood by Counsel and Plaintiffs was that no action would be taken against Counsel

and Plaintiffs so long as they did not go forward on appeal. Most Cities in Arizona do not
pursue former employees for attorneys' fees (especially police officers) because it appears to the Police Union and to existing employees that the employer is vindictive and could chill the relationship between the City and the Police Union and its members. Counsel appealed the attorneys' fee judgment to the Ninth Circuit. After Oral argument before the Ninth Circuit Court of Appeals, Katherine Baker filed a motion before the Court to correct the Judgment. Rule 60(a) prohibits such action while the matter was on appeal. The Court remained silent on her pleading and the Motion to Strike

13

that was filed. Katherine Baker sought relief from the Ninth Circuit and her motion was
14 15 16 17 18 19 20 21 22 23 24 25 26

denied on October 10, 2007. The Ninth Circuit Court of Appeals issued their mandate
reversing the judgment for attorneys' fees against Plaintiffs on October 18, 2007. The Court remained silent for over six (6) months after the mandate on the issue of attorneys' fees. It does not appear to be a coincidence that the Court amended the judgment on soon after the Arizona State Bar issued its findings on the Court's Bar Complaint that it was not to take any action against Counsel. The State Bar issued its

findings on or about April 15, 2008 and the Court entered its order on the amended
Judgment on April 28, 2008. The facts indicate that the Bar Complaint and the Judgment would not have been entered against Counse l if Counsel did not pursue the matter on appeal. The implication is that the Courts actions were intentionally done and that the motivation for sending the matter to the Arizona State Bar was Counsels representation of Plaintiffs at oral argument. The above actions of not filing the Bar Complaint and issuing the

Case 2:03-cv-00249-JAT

3 Document 186

Filed 05/08/2008

Page 3 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Judgment appear intentionally done and the filing of the Bar C omplaint and the Amended Judgment appear to be motivated at least in part as a response to the exercise of Counsel

and Plaintiffs constitutional rights and for the Arizona Bar not taking any action against
Counsel. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568 (1977); see McCurdy v. Montgomery County, Ohio, 240 F.3d 512, 520 (6th Cir. 2001)(remanding a claim that an officer retaliated against plaintiff for his speech by executing an otherwise valid arrest for an inquiry into the officer's motivations) . Further, Rule 60(a) cannot be used to alter the substantive rights of the parties. See Paddington Partners v. Bouchard, 34 F.3d 1132, 1140 (2d Cir.1994) ("An error in a judgment that accurately reflects the decision of the court or jury as rendered is not `clerical' within the terms of Rule 60(a).") . Rule 60(a) is directed to errors or omissions that are "essentially ministerial act of transcribing the court's rendered judgment into writing." Rule 60(a) cannot serve to correct errors or omissions in the judicial act of rendering that judgment. Dudley ex rel. Estate of Patton v. Penn-America Ins. Co., 313 F.3d 662, 671 (C.A.2 (N.Y.) 2002). A clerical mistake "must not be one of judgment or even of misidentification , but merely of recitation , of the sort that a clerk or amanuensis might commit, mechanical in nature (emphasis added)." Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668-69 (C.A.5 (La.) , 1986). Rule 60(a) is used to correct judgments that are incorrect because they are errors similar to an erroneous mathematical computation. Chavez v. Balesh, 704 F.2d 774, 776-77 (5th Cir.1983). "Errors of a more substantial nature are to be corrected by a motion under Rules 59(e) or 60(b)." 11 Wright and Miller, Federal Practice and Procedure, § 2854 at 149 (1973). Correction of an error of "substantive judgment," therefore, is outside the reach of Rule 60(a). Jones v. Anderson-Tully Co., 722 F.2d 211, 212 (5th Cir.1984); Trahan v. First National Bank of

Ruston, 720 F.2d 832, 833-34 (5th Cir.1983), judgment of district court aff'd, 747 F.2d
990 (5th Cir.1984) (per curiam). See also, In re Galiardi, 745 F.2d 335, 337 (5th

Case 2:03-cv-00249-JAT

4 Document 186

Filed 05/08/2008

Page 4 of 7

1 2 3 4 5 6 7 8 9 10 11 12

Cir.1984); Warner v. City of Bay St. Louis, 526 F.2d 1211, 1212 (5th Cir.1976), judgment of district court aff'd, 552 F.2d 583 (5th Cir.1977) (per curiam); West Virginia Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702, 705 (5th Cir.1954). In this case, the Judgment entered by the Clerk is identical and consistent with the February 9, 2006 order of the Court. While the Court indicated in its prior July 8, 2005 Order that sanctions would be entered against Counsel, the Judgment, after consideration of additional pleadings, was against Plaintiffs rather than Counsel. The fact that Defendants and Defendants Counsel never objected or tried to correct the judgment (the issue was clearly raised on appeal and therefore Defendants had knowledge of the error for a long time while the matter was on appeal) indicates there agreement that the judgment be against Plaintiffs rather than Counsel. This is not a clerical error but a substantive one. The error involves judgment and misidentification. Substantive Judicial errors are corrected pursuant to Rule 60(b) rather than Rule 60(a). Nevitt v. United

13 14 15 16 17 18 19 20 21 22 23 24 25 26

States, 886 F.2d 1187, 1188 (9th Cir. 1989); see Wesco Prod. Co. v. Alloy Auto. Co., 880

F.2d 981, 984-85 (7th Cir.1989). Rule 60(b)(1) can be used by a trial court to correct
judicial errors. Gila River Ranch, Inc. v. United States, 368 F.2d 354, 357 (9th Cir.1966); Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir.1999) ("[T]he words `mistake' and `inadvertence' ... may include mistake and inadvertence by the judge."). Defendant is asking this Court to do more than just correct the recitation of the Court Judgment as set forth in the record. More than a year and one -half latter, Defendants are asking this Court change who the judgment is against. T his is a substantive judgment and misidentification error that is outside the scope of Rule 60(a). This judgment and misidentification error can only be corrected under Rule 60(b). Defendants have not sought such relief and it is to late at this point to do so. Rule 60(a) does not give the Court jurisdiction to act after the matter is heard on appeal. Mamedov v. Ashcroft, 387 F.3d 918 (7th Cir. 2004). The Case cited by the

Case 2:03-cv-00249-JAT

5 Document 186

Filed 05/08/2008

Page 5 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Court (Standard Oil CO. v. United States, 429 U.S. 17 (1976) applies to Rule 60(b) cases where jurisdiction does remain while the matter is on appeal. No authority exists authorizing the Court to exercise Rule 60(a) relief after the mandate is issue on appeal. In

fact the Notes to Rule 60(a) clearly indicated there is authority that no jurisdiction to act
under Rule 60(a) is retained by the Court after appeal.

"The amendment incorporates the view expressed in Perlman v. 3 22 West Seventy-Second Street, Co., Inc., C.C.A.2d, 1942, 127 F.2d 716; 3 Moore's Federal Practice, 1938, 3276, and further permits correction after docketing, with leave of the appellate court. Some courts have thought that upon the taking of an appeal the district court lost its power to act. See Schram v. Safety Investment Co., E.D.Mich.1942, 45 F.Supp. 636; also Miller v. United States, C.C.A.7th, 1940, 114 F.2d 267."
In this case, the Ninth Circuit denied the Motion to Correct the Judgment and reversed the Judgment on Appeal. The Ninth Circuit conclusively refused to give the Trial C ourt authority and did not remand the matter after reversal of the Judgment. T he issue was addressed and fully resolved on appeal.

Finally, the Judgment against Plaintiffs was not a mistake. Such a finding
requires the conclusion that the C ourt mistakenly entered the Order after review of the specific attorneys fees requests and thereafter entered Judgment based thereon against Plaintiffs rather than Counsel. Further, such a finding requires the conclusion that the Court also committed a mistake in not referring the matter to the Arizona State Bar for almost two years and that it was coincidence that the referral occurred right after oral argument before the Ninth Circuit C ourt of Appeals. Finally, such a finding requires the

22

conclusion that it is a coincidence the Amended Judgment was entered only after the State
23 24 25 26

Bar decided to take no action against Plaintiff's counsel. Plaintiffs refer the Court to its own rulings on Defendants Motion for Rule 11 Sanctions and the Order to Show Cause hearing and demand the Court hold itself to the same standards. It is impossible to believe that the above actions were not intentionally (both the Court and Defendants
6 Document 186

Case 2:03-cv-00249-JAT

Filed 05/08/2008

Page 6 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Counsel made the identical mistake) done to deny Plaintiffs their rights on appeal and then to punish Plaintiffs counsel for pursuing the appeal on Plaintiffs behalf. WHEREFORE, based on the above, Plaintiffs and Counsel requested the Amended Judgment for Attorneys fees be stricken and that the Amended Judgment for Attorneys fees be vacated. RESPECTFULLY SUBMITTED this 8th day of May, 2008. KEITH M. KNOWLTON, L.L.C.

/s/ Keith Knowlton this date By:____________________________ Keith M. Knowlton Attorney for Plaintiff Original filed by EDF with the Court and one copy sent by facsimile and First Class Mail this 8th day of May 2008, to: Katherine Baker GREEN & BAKER Green & Baker, Ltd. 7373 N. Scottsdale Road, Suite B -200 Scottsdale, Arizona 85253

/s/ Keith Knowlton this date __________________________

Case 2:03-cv-00249-JAT

7 Document 186

Filed 05/08/2008

Page 7 of 7