Daurio v. Faust ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Steven Louis Daurio, No. CV-18-03299-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 Arizona Department of Child Safety, et al., 13 Defendants. 14 15 16 Pending before the Court is Defendants Reynolds, Passmore, and Cargill’s 17 (“Defendants”) Motion for Reconsideration. (Doc. 122.) For the following reasons, the 18 Motion is denied. Nevertheless, for the reasons stated more fully below, because 19 Defendants Reynolds, Passmore and Cargill were sued in their official capacity and no 20 longer work for the Department, they shall be replaced as Defendants upon Plaintiff’s 21 compliance with Fed. R. Civ. P. 25(d) as set forth below. 22 BACKGROUND 23 The facts in this case are set forth in the Order denying Plaintiff’s Motion for Partial 24 Summary Judgment and granting in part Defendants’ Cross Motion for Summary 25 Judgment. (Doc. 120.) In that Order, the Court dismissed Plaintiff’s procedural due process 26 and damages claims and declined to dismiss Plaintiff’s claim for injunctive relief for 27 substantive due process violations. Id. at 14. Defendants now contend that because they are 28 no longer employed by the Department of Child Safety (“DCS”) the Court erred by 1 allowing Plaintiff’s claims to proceed. 2 DISCUSSION 3 “The Court will ordinarily deny a motion for reconsideration of an Order absent a 4 showing of manifest error or a showing of new facts or legal authority that could not have 5 been brought to its attention earlier with reasonable diligence.” L.R. Civ. P. 7.2(g)(1); see 6 also Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) 7 (noting that motions to reconsider are appropriate only if the Court “(1) is presented with 8 newly discovered evidence, (2) committed clear error or the initial decision was manifestly 9 unjust, or (3) if there is an intervening change in controlling law”); Motorola, Inc. v. J.B. 10 Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003) (holding that a 11 motion for reconsideration is appropriate only when there is newly-discovered fact or law, 12 newly-occurring facts, a material change in the law, or upon a convincing showing that the 13 Court failed to consider material facts that were presented before the initial decision). “A 14 motion for reconsideration ‘may not be used to raise arguments or present evidence for the 15 first time when they could reasonably have been raised earlier in the litigation.’” Marlyn 16 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) 17 (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). 18 Defendants assert that the Court should reconsider its Order because they are no 19 longer employed by DCS. As Defendants could have informed the Court in their original 20 briefing that they were no longer employed by DCS, their motion is denied. Plaintiff’s First 21 Amended Complaint clearly seeks “non-Financial” damages, requesting that DCS: (1) alter 22 and seal its records; (2) be precluded from using the allegation at issue against the Plaintiff 23 in the future; and (3) be required to notify the police of Plaintiff’s allegation. (Doc. 13 at 24 58–59.) 25 Nevertheless, as Reynolds, Passmore, and Cargill were sued in their official 26 capacities only, they will be replaced as Defendants by their appropriate successors and, in 27 effect, be dismissed from this lawsuit. See, Fed. R. Civ. P. 25(d). The Court will order the 28 substitution of the parties as soon as they are identified by the Plaintiff. Because DCS is no longer a party to this action, Plaintiff is directed to provide the names of the officers 2|| replacing the Defendants to the Court as soon as possible. Thereafter, the parties may brief || whether Plaintiff's injunctive relief is properly sought against the Defendants’ successors pursuant to Rule 25(d). 5 CONCLUSION 6 For the reasons stated above, the Defendants’ Motion for Reconsideration is denied. 7 IT IS THEREFORE ORDERED that Defendants Reynolds, Passmore, and 8 || Cargill’s Motion for Reconsideration (Doc. 122) is DENIED. 9 IT IS FURTHER ORDERED that Plaintiff must supply the names of the officials || replacing the Defendants in the instant suit. The names shall be provided to the court within 14 days of the filing of this Order. 12 IT IS FURTHER ORDERED that after the Plaintiff supplies the names of the 13 || new, substituted Defendants they shall have the opportunity to brief whether the Plaintiff can properly seek an injunction against them under the circumstances. The new Defendants 15 || shall have 14 days from their substitution to file their briefing. The Plaintiff shall have 7 || days to respond. Each party’s briefing must be limited to 5 pages. 17 Dated this 8th day of February, 2021. Whirs ) 19 A Whacrsay Sooo) 20 Chief United states District Judge 21 22 23 24 25 26 27 28 -3-