Aura Rossi v. City of Lakewood

FILED
NOT FOR PUBLICATION
JAN 28 2010
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AURA ROSSI, No. 08-35972
Plaintiff-Appellant, D.C. No. 3:07-cv-5411-RBL
*
MEMORANDUM
v.
CITY OF LAKEWOOD, a
Washington Municipal Corporation;
HEIDI WACHTER, City Attorney;
LAKEWOOD FIRE DEPARTMENT;
and PAUL WEBB, Chief, Lakewood
Fire Department,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted December 8, 2009 **
Seattle, Washington
Before: GOULD and TALLMAN, Circuit Judges, and BENITEZ,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
Aura Rossi appeals from the district court’s grant of summary judgment in
favor of the City of Lakewood, the Lakewood Fire Department, and Paul Webb,
Chief, Lakewood Fire Department, and the district court’s denial of Rossi’s motion
for reconsideration. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Aura Rossi argues that summary judgment was entered against her as an
impermissible sanction due to her failure to file opposition briefs. As to the motion
brought by the Lakewood Fire Department and its fire chief, during the hearing
Rossi’s counsel waived any opposition and there were no genuine issues of
material fact identified that would preclude summary judgment. The district court
correctly granted summary judgment.
As to the motion brought by the City of Lakewood, the district court erred in
granting summary judgment as a sanction for Rossi’s failure to comply with the
local rules of court. “For violation of the local rule the district court will be free to
devise such sanctions as seem appropriate short of granting summary judgment
where the movant has failed to meet its burden of demonstrating the absence of
triable issues.” Martinez v. Stanford, 323 F.3d 1178, 1182-83 (9th Cir. 2003)
(quoting Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995)).
Rossi brought the error to the attention of the district court in her motion for
reconsideration. A district court’s denial of a motion for reconsideration is
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reviewed for an abuse of discretion. Bellus v. United States, 125 F.3d 821, 822
(9th Cir. 1997) (per curiam). On reconsideration, the district court did consider the
underlying undisputed facts. The district court granted summary judgment in favor
of the City of Lakewood on the merits of the motion, and not solely as a sanction.
In so doing, we cannot say the district court abused its discretion.
Rossi also sought reconsideration of the summary judgment entered for the
fire department defendants and an earlier judgment in favor of City of Lakewood
City Attorney, Heidi Wachter, entered on the basis of prosecutorial immunity. The
district court found no reason to change the earlier rulings and we find no abuse of
discretion.
AFFIRMED.
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