Castillo v. Johnson ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tisha Castillo, et al., No. CV-17-04688-PHX-DLR 10 Plaintiffs, ORDER 11 v. 12 George Harry Johnson, et al., 13 Defendants. 14 15 16 Before the Court is Defendants’ motion to certify question to the Arizona Supreme 17 Court, which is fully briefed. (Docs. 127, 130, 133.) For the following reasons, the Court 18 will deny Defendants’ motion.1 19 I. Background 20 On November 15, 2018, George Johnson, Johnson Utilities LLC (“Johnson 21 Utilities”), Johnson International Inc. (“Johnson International”), and James Norton 22 (collectively the “Bribery Defendants”) moved to dismiss Plaintiffs’ complaint as barred 23 by the filed rate doctrine. (Doc. 78.) On September 5, 2019, the Court denied Bribery 24 Defendants’ motion to dismiss. (Doc. 120.) In its decision, the Court noted a lack of 25 Arizona precedent adopting or rejecting the filed rate doctrine, but declined to certify the 26 question whether Arizona had, indeed, adopted a version of the filed rate doctrine to the 27 1 Defendants’ request for oral argument is denied because the issues are adequately briefed and oral argument will not help the Court resolve the motion. See Fed. R. Civ. P. 28 78(b); LRCiv. 7.2(f); Lake at Las Vegas Investors Grp., Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991). 1 Arizona Supreme Court, concluding that it could resolve Bribery Defendants’ motion 2 without answering the question. (Id. at 6-9.) The Court explained that, even if Arizona 3 had adopted a filed rate doctrine, it would not apply here because the Commission 4 repudiated the doctrine when it disclaimed authority to regulate conduct identical to that 5 challenged in Plaintiffs’ complaint in Delton Munday, et al., ACC Docket No. WD- 6 02987A-17-0192. (Id. at 9-11.) On September 26, 2019, Defendants filed their motion to 7 certify question to the Arizona Supreme Court, asking the Court to reconsider its decision 8 not to certify the filed rate question. (Doc. 127.) Particularly, Defendants request the Court 9 to certify the following question to the Arizona Supreme Court: “Whether Arizona law 10 precludes a Court from hearing a claim by a rate payor that a utility’s rates were set too 11 high because of the utility bribing a Commissioner.” (Id.) Defendants’ motion is ripe. 12 II. Legal Standard 13 Motions for reconsideration should be granted only in rare circumstances. 14 Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). Mere 15 disagreement with a previous order is an insufficient basis for reconsideration. See Leong 16 v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988). A motion for 17 reconsideration ordinarily will be denied “absent a showing of manifest error or a showing 18 of new facts or legal authority that could not have been brought to its attention earlier with 19 reasonable diligence.” LRCiv 7.2(g). Further, the motion must “point out with specificity 20 the matters that the movant believes were overlooked or misapprehended by the Court, any 21 new matters being brought to the Court’s attention for the first time and the reasons they 22 were not presented earlier, and any specific modifications being sought in the Court’s 23 Order.” Id. Finally, “[n]o motion for reconsideration . . . may repeat any oral or written 24 argument made by the movant in support of or in opposition to the motion that resulted in 25 the Order.” Id. The court may deny a motion for reconsideration if it fails to comply with 26 these rules. Id. 27 III. Discussion 28 In its motion, Defendants urge that the Court “could” and “should” certify their 1 proposed question to the Arizona Supreme Court. (Doc. 127.) The Court thoroughly 2 considered the appropriateness of certifying a filed rate doctrine question to the Arizona 3 Supreme Court when ruling on the Bribery Defendants’ motion to dismiss. (Doc. 120 at 4 6-11.) It determined in its discretion that certification was not proper. See Smith v. Allstate 5 Ins. Co., 202 F. Supp. 2d 1061, 1064 (D. Ariz. 2002). Defendants have made no showing 6 that the Court’s determination was manifestly erroneous, have presented no new facts, and 7 have produced no new legal authority that could not have been brought to its attention 8 earlier with reasonable diligence to justify its request. The Court stands by its prior 9 determination. 10 Particularly, the Court concluded that it need not determine whether Arizona had 11 adopted a version of the filed rate doctrine because, even had it done so, the doctrine would 12 not bar jurisdiction here considering the Commission disclaimed jurisdiction over all issues 13 raised in Plaintiffs’ complaint in its Munday decision, thereby repudiating application of 14 any filed rate doctrine to this case. (Id. at 9-11 (citing Doc. 96-1).)2 Defendants now assert 15 that the Court’s conclusion would be sound had the Commission also disclaimed its 16 jurisdiction to determine the reasonableness of the utility’s rate. (Doc. 127 at 5.) However, 17 as the Court explained in its order denying Bribery Defendants’ motion to dismiss (Doc. 18 120 at 11), the reasonableness of Johnson Utility’s rate is not at issue in this case. Rather, 19 Plaintiffs are challenging the Bribery Defendants’ conduct in inducing the setting of a 20 higher rate base.3 Thus, the Commission disclaimed jurisdiction over the claims asserted 21 by Plaintiffs, despite maintaining jurisdiction over the issue of whether the utility’s rate 22 was reasonable in Munday. Consequently, any potential filed rate doctrine would be 23 inapplicable here, and certification of a file rate doctrine question to the Arizona Supreme 24 2 Defendants assert, without authority and in the face of contrary Ninth Circuit 25 authority, Carlin v. DairyAm., Inc., 705 F.3d 856, 868 (9th Cir. 2013) (citing Verizon Del., Inc. v. Convad Commc’ns Co., 377 F.3d 1081, 1089 (9th Cir. 2004)), that the Commission 26 cannot repudiate the filed rate doctrine. (Doc. 133 at 2-3.) The Court rejects this argument. 3 Defendants’ proposed question to the Arizona Supreme Court—which describes 27 the issue to be whether the “utility’s rates were set too high”—mischaracterizes the nature of Plaintiffs’ claims. (Doc. 127 at 1.) Thus, even if the Court were to certify a filed rate 28 doctrine question to the state supreme court, which it will not, it would not certify Defendants’ proposed question. 1 |} Court would be inappropriate. 2 IT IS ORDERED that Defendants’ motion to certify question to the Arizona 3 || Supreme Court (Doc. 127) is DENIED. 4 Dated this 13th day of December, 2019. 5 6 ‘bo tha 9 Usted States Dictric Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-