Mansfield v. Jones Pfaff et al, No. 2:2014cv00948 - Document 103 (W.D. Wash. 2015)
Court Description: ORDER granting 94 United States' Motion for Summary Judgment; denying 95 Ms. Mansfield's Motion to Continue; denying 96 Ms. Mansfield's Motion for Certificate of Appealability; denying 97 Ms. Mansfield's Motion for Reconsideration. The court therefore DISMISSES the claims against Defendants the United States, Ms. Jones-Pfaff, and Ms. Reichow with prejudice, by Judge James L. Robart.(MD) Modified on 6/18/2015- cc to Shelly (MD).
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Mansfield v. Jones Pfaff et al Doc. 103 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 PAMELA MANSFIELD, CASE NO. C14-0948JLR Plaintiff, 11 12 v. 13 ORDER DAWN JONES PFAFF, et al., Defendants. 14 15 I. 16 INTRODUCTION Before the court are Plaintiff Pamela Mansfield’s motion for reconsideration (Mot. 17 for Reconsid. (Dkt. # 97)), motion to certify appeal (Mot. to Cert. (Dkt. # 96)), and 18 motion to continue (Mot. to Cont. (Dkt. # 95)), and Defendant United States of America’s 19 (“the United States”) motion for summary judgment (MSJ (Dkt. # 94)). Defendants Dr. 20 // 21 // 22 // ORDER- 1 Dockets.Justia.com 1 Jerry Palmer and Mara Fletcher 1 have filed responses to Ms. Mansfield’s motions to 2 certify and to continue. (Resp. re Cert. (Dkt. # 101); Resp. re Cont. (Dkt. # 99).) Ms. 3 Mansfield has not filed a response to the United States’ motion for summary judgment or 4 reply memoranda in support of her motions to certify and to continue. (See Dkt.) The 5 court has considered the submissions of the parties, the balance of the record, and the 6 relevant law. Being fully advised, 2 the court DENIES Ms. Mansfield’s motion for 7 reconsideration, GRANTS the United States’ motion for summary judgment, DENIES 8 Ms. Mansfield’s motion to certify, and DENIES Ms. Mansfield’s motion to continue. 9 10 II. BACKGROUND This case arises out of a conflict between coworkers that culminated in allegations 11 of a workplace assault and ultimately in Ms. Mansfield being fired. The facts are 12 discussed at length in this court’s prior orders and in the parties’ submissions and are 13 only briefly summarized here. (See, e.g., 12/16/14 Order (Dkt. # 60).) Ms. Mansfield is 14 a nurse who worked for the University of Washington (“UW”). (3d Am. Compl. (Dkt. 15 # 61) ¶¶ 1, 10.) In 2007, Ms. Mansfield was appointed to work as a research nurse on a 16 project at the Veterans Administration (“VA”) office in Seattle, Washington. (Id. ¶ 10.) 17 As part of this project she worked under Dr. Palmer and was required to hold a without 18 19 1 At all times relevant to this action, Ms. Fletcher was known as Mara Fletcher. Although her current legal name is now Mara Stevens, for ease of reference the court will continue to refer 20 to her as Ms. Fletcher or Mara Fletcher. (See anti-SLAPP Mot. (Dkt. # 40) at 4 n.5; Stevens 21 Decl. (Dkt. # 41) ¶ 1.) 2 No party has requested oral argument, and the court deems oral argument to be 22 unnecessary to its resolution of these motions. ORDER- 2 1 compensation appointment with the VA. (Id.; see Brooks-Worrell Decl. (Dkt. # 31) ¶¶ 32 4; Lovato Decl. (Dkt. # 33) ¶¶ 3-4.) Among her colleagues on the Palmer team were 3 Dawn Jones-Pfaff and Jessica Reichow. (3d Am. Compl. ¶¶ 4, 6, 10.) 4 At some point Ms. Mansfield and Ms. Jones-Pfaff developed animus toward one 5 another. Each accused the other of misconduct and reported those accusations to their 6 superiors. (See id. ¶ 12; Dkt. # 63-2 at 79-80, 84-85.) Other members of the Palmer 7 team, including Ms. Reichow and Dr. Palmer, also had difficult relationships with Ms. 8 Mansfield. (See, e.g., 3d Am. Compl. ¶ 12.) For example, Ms. Mansfield alleges that Dr. 9 Palmer disliked her and attempted to get her fired because she had reported deficiencies 10 in the research team’s work. (See id. ¶¶ 12-18, 34; Mot. for Reconsid. at 8-9.) 11 This intra-office conflict came to a head on March 9, 2011. Ms. Mansfield 12 alleges that on that date Ms. Jones-Pfaff attacked her at work by sneaking up behind her 13 and slamming her head into her desk. (3d Am. Compl. ¶ 19.) Ms. Mansfield further 14 alleges that Ms. Jones-Pfaff and Ms. Reichow met and agreed to lie about the incident 15 and about Ms. Mansfield more generally in order to hide the alleged assault and get Ms. 16 Mansfield fired. (See id.) VA officials investigated the alleged assault, and after 17 determining that no assault occurred, terminated Ms. Mansfield’s VA appointment. (See 18 id. ¶ 20.) Shortly thereafter, UW officials terminated Ms. Mansfield’s UW employment. 19 (Id.) Ms. Mansfield alleges that Dr. Palmer and Ms. Fletcher, a UW human resources 20 (“HR”) administrator, helped get her fired in retaliation for her having reported 21 deficiencies in the research team’s work. (See id. ¶¶ 12, 21, 33-35; Mot. for Reconsid. at 22 8-9.) ORDER- 3 1 Ms. Mansfield filed this suit in state court in March 2014. (State Ct. Rec. (Dkt. 2 # 2-1) at 5.) Her current complaint alleges four causes of action: negligent infliction of 3 emotional distress (against Ms. Jones-Pfaff) (3d Am. Compl. ¶¶ 27-29), tortious 4 interference with a contract and civil conspiracy (against Ms. Jones-Pfaff and Ms. 5 Reichow) (id. ¶¶ 23-26, 30-32), and a 42 U.S.C. § 1983 claim for retaliatory firing in 6 violation of her First Amendment rights (against Dr. Palmer and Ms. Fletcher) (id. ¶¶ 337 35). It is undisputed that Ms. Mansfield has never filed an administrative complaint with 8 the VA concerning the events at issue in her complaint. (See MSJ at 3; Bradshaw Decl. 9 (Dkt. # 14-3) at 1; Mot. to Cert. at 9.) 10 On June 27, 2014, the United States removed this case to federal court and 11 substituted itself for Ms. Jones-Pfaff and Ms. Reichow under the Westfall Act, 28 U.S.C. 12 § 2679(d)(2), by certifying that Ms. Jones-Pfaff and Ms. Reichow were acting within the 13 scope of their federal employment at the times at issue in this lawsuit. (See Not. of Rem. 14 (Dkt. # 1); Not. of Sub. & Cert. (Dkt. # 3).) This certification was premised on the 15 contention that no tortious conduct actually occurred. (See US Mot. to Dismiss (Dkt. 16 # 14) at 9-11; see also 8/27/14 Order (Dkt. # 38).) 17 On September 11, 2014, before Ms. Mansfield challenged the United States’ 18 certification, the defendants for whom the United States had substituted itself (“the 19 displaced Defendants”) brought a motion attacking Ms. Mansfield’s claims against them 20 under Washington’s anti-SLAPP statute. (See anti-SLAPP Mot. (Dkt. # 40).) The court 21 denied that motion on December 16, 2014, finding that the displaced Defendants were no 22 longer parties who could bring motions attacking Ms. Mansfield’s claims. (See 12/16/14 ORDER- 4 1 Order at 11-14.) During the pendency of the anti-SLAPP motion, however, the displaced 2 Defendants insisted on a discovery stay that they believed was required by the anti3 SLAPP statute. (See 1st Jacobson Decl. (Dkt. # 49-1) at 8, 10.) In its order denying the 4 anti-SLAPP motion, the court noted that the appropriateness of the United States’ 5 certification should be decided as soon as possible. (12/16/14 Order at 14.) To that end, 6 the court directed Ms. Mansfield to file her challenge to the United State’s certification 7 by March 16, 2015. (See id. at 15, 32.) 8 On March 16, 2015, Ms. Mansfield timely filed a motion challenging the United 9 States’ certification and requesting an evidentiary hearing. (Cert. Mot. (Dkt. # 63).) The 10 United States responded (Cert. Resp. (Dkt. # 68)) and Ms. Mansfield filed a reply 11 memorandum (Cert. Reply (Dkt. # 73)). The court then reviewed the parties’ briefing, 12 considered the evidence and authorities submitted in support thereof, and heard oral 13 argument. (OA Min. Entry (Dkt. # 91); OA Trans. (Dkt. # 98).) At the close of oral 14 argument, the court ruled from the bench that Ms. Mansfield had failed to carry her 15 burden to show by a preponderance of the evidence that Ms. Jones-Pfaff and Ms. 16 Reichow had committed the alleged torts. (See OA Trans. at 35-37, 39-40.) The court 17 therefore denied Ms. Mansfield’s motion and upheld the United States’ certification. 18 (See id. at 37, 40.) 19 Within two weeks of the court’s oral ruling, the parties filed the four motions now 20 before the court. Ms. Mansfield’s motion for reconsideration assigns error to the court’s 21 decision not to hold an evidentiary hearing on her certification challenge and asks the 22 court to vacate its oral ruling. (Mot. for Reconsid. at 1-3, 12.) The United States’ motion ORDER- 5 1 for summary judgment asks the court to dismiss Ms. Mansfield’s claims against the 2 United States for, among other reasons, failure to exhaust her administrative remedies as 3 required by the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680. (MSJ at 24 4.) Ms. Mansfield’s motion to certify requests that if the court denies her motion for 5 reconsideration, the court certify for immediate interlocutory appeal its decision not to 6 hold an evidentiary hearing, or in the alternative, enter final judgment on her claims 7 against Ms. Jones-Pfaff and Ms. Reichow. (See Mot. to Cert. at 1, 11.) Ms. Mansfield’s 8 final motion asks the court to continue all case schedule deadlines, including the trial date 9 by 90 days in order to allow her sufficient time to conduct discovery on her remaining 10 claims. (See Mot. to Cont. at 1; 2d Jacobson Decl. (Dkt. # 95-1).) These motions are 11 now ripe for the court’s consideration. 12 III. DISCUSSION 13 A. Ms. Mansfield’s Motion for Reconsideration 14 Pursuant to Local Civil Rule 7(h)(1), motions for reconsideration are disfavored 15 and will ordinarily be denied unless there is a showing of (a) manifest error in the prior 16 ruling or (b) new facts or legal authority which could not have been brought to the 17 attention of the court earlier through reasonable diligence. Local Rules W.D. Wash. LCR 18 7(h)(1). Ms. Mansfield asks the court to reconsider its oral ruling on her challenge to the 19 United States’ certification on the basis of what she alleges are three “manifest errors.” 20 (Mot. for Reconsid. at 2-3.) These three assignments of error all address the same 21 issue—whether the court was required to hold an evidentiary hearing before ruling on 22 ORDER- 6 1 Ms. Mansfield’s certification challenge. (See id.) For the following reasons, the court 2 finds that Ms. Mansfield has not demonstrated manifest error in the prior ruling. 3 Ms. Mansfield’s first assignment of error is that the court “misapprehended the 4 rule in [Arthur v. United States, 45 F.3d 292, 295 (9th Cir. 1995)], which required an 5 evidentiary hearing to resolve disputed material facts” concerning certification. (Mot. at 6 2.) In particular, Ms. Mansfield relies on the following passage from Arthur: “[T]he 7 immunity [i.e., certification] issue should be decided at an early stage of the case, and a 8 motion for summary judgment on the immunity issue is an appropriate vehicle for 9 making that determination. However, where disputed issues of fact exist relevant to 10 immunity, summary judgment will not be appropriate until the district court has held an 11 evidentiary hearing and resolved the disputes by formal findings.” 45 F.3d at 295 12 (internal citations omitted); (Mot. for Reconsid. at 3.) 13 There are several problems with Ms. Mansfield’s argument. First, it is not clear 14 that Arthur requires the court to analyze all certification challenges under the rubric of a 15 motion for summary judgment, or to hold an evidentiary hearing whenever the parties 16 dispute material facts. For instance, in addition to the above-quoted language, the Arthur 17 court also held that “when a district court is reviewing a certification question under the 18 Westfall Act, it must identify and resolve disputed issues of fact necessary to its decision 19 before entering its order. In doing so, it should hold such hearings as appropriate 20 (including an evidentiary hearing if necessary) . . . .” 45 F.3d at 296. This statement 21 22 ORDER- 7 1 indicates that an evidentiary hearing may not always be necessary even when the court is 2 “resolv[ing] disputed issues of fact necessary to its [certification] decision.” Id. 3 3 Second, the court would deny Ms. Mansfield’s challenge to the United States’ 4 certification without an evidentiary hearing even if Arthur requires district courts to 5 analyze certification challenges as motions for summary judgment and hold evidentiary 6 hearings anytime the challenger raises a genuine dispute of material fact. The court 7 would reach this result because Ms. Mansfield failed to raise a genuine dispute as to any 8 fact material to certification. In the context of summary judgment, a fact is material if it 9 might affect the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 10 248 (1986). A factual dispute is genuine “only if there is sufficient evidence for a 11 reasonable fact finder to find for the non-moving party.” Far Out Prods. v. Oskar, 247 12 F.3d 986, 992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248-49). When deciding 13 whether a dispute is genuine, the court must consider which party bears the burden of 14 proof on the fact in question. See Anderson, 477 U.S. at 252-55. 15 For all the reasons the court discussed at oral argument, Ms. Mansfield failed to 16 create a genuine dispute of material fact regarding whether any tortious conduct actually 17 occurred. The court found at oral argument that Ms. Mansfield had not carried her 18 burden to prove the alleged torts on a more-probable-than-not basis. (See OA Trans. at 19 3 Furthermore, the court notes that Ms. Mansfield neither cited Arthur in her motion challenging certification or reply (see Certification Mot.; Certification Reply), nor argued that the motion should be evaluated under a summary judgment framework (see id.), nor objected at 21 oral argument when the court stated that it was not required to hold an evidentiary hearing and was not treating Ms. Mansfield’s motion as a motion for summary judgment (see OA Trans. at 22 36). 20 ORDER- 8 1 35-39.) Nevertheless, the court based its ruling primarily on the absence of evidence in 2 favor of Ms. Mansfield’s position. (See id.) Indeed, the court specifically noted its 3 reliance on Ms. Mansfield’s deposition statement that she does not know who assaulted 4 her but only suspects it was Ms. Jones-Pfaff. (See id. at 35-37.) The court also stated 5 several times that Ms. Mansfield’s circumstantial evidence did not permit it to conclude 6 that tortious conduct occurred. (See id. at 35 (“[T]here was insufficient evidence 7 presented to reach that conclusion [that Ms. Jones-Pfaff assaulted Ms. Mansfield] . . . .”), 8 38 (stating that Ms. Mansfield’s attack on the VA police investigation was “insufficient 9 to . . . create[] the belief that Ms. [Jones-]Pfaff was the person who committed the alleged 10 assault”), 39 (finding that Ms. Jones-Pfaff’s and Ms. Reichow’s statements about Ms. 11 Mansfield do not “support the finding that there was a civil conspiracy or a series of 12 lies”). These same factors lead the court to conclude that, even viewing the evidence in 13 the light most favorable to Ms. Mansfield, a reasonable fact-finder could not find that the 14 alleged tortious conduct more probably than not took place. See Anderson, 477 U.S. at 15 248-55; Arthur, 45 F.3d at 295. Accordingly, the court rejects Ms. Mansfield’s first 16 assignment of error, because even under Ms. Mansfield’s interpretation of Arthur, Ms. 17 Mansfield was not entitled to an evidentiary hearing. 18 Ms. Mansfield’s second and third assignments of error likewise fail to show a 19 basis for reconsideration of the court’s prior order. Her second assignment of error faults 20 the court for not making credibility findings, which she suggests the Supreme Court’s 21 opinion in Osborn v. Haley, 549 U.S. 225 (2007), invariably requires in certification 22 challenges. (See Mot. for Reconsid. at 4-7 (citing Osborn, 549 U.S. at 251-52).) Yet ORDER- 9 1 Osborn contains no such requirement. Rather the Osborn Court observed that in that 2 particular case the validity of the United States’ certification would likely turn on issues 3 of credibility. Osborn, 549 U.S. at 251-52. Ms. Mansfield fails to demonstrate that this 4 case is similar to Osborn in that respect or that Osborn requires courts to make findings 5 regarding credibility; therefore, the court rejects her second assignment of error. 6 Ms. Mansfield’s third assignment of error is based on the effect the court’s oral 7 ruling might have on her remaining claims. (See Mot. for Reconsid. at 7.) Although her 8 argument here is not clear, she appears to reason as follows: Ms. Mansfield’s First 9 Amendment claim hinges on Dr. Palmer’s motive for attempting to get Ms. Mansfield 10 fired; to show a speech-based motive and refute a legitimate motive, Ms. Mansfield must 11 show that she did not fabricate her assault claim; the court’s oral ruling hinders her ability 12 to do this because the ruling establishes that Ms. Jones-Pfaff did not assault Ms. 13 Mansfield; questions of motive, however, cannot be resolved without a jury trial or an 14 evidentiary hearing where the plaintiff has any evidence of an improper motive; Ms. 15 Mansfield has some evidence of speech-based motive; therefore, it was error for the court 16 not to hold an evidentiary hearing before making a determination that will inhibit Ms. 17 Mansfield’s ability to prove a speech-based motive. (See id. at 7-9.) This chain of 18 reasoning boils down to an argument that the court must hold an evidentiary hearing 19 whenever determination of the certification issue will impact the plaintiff’s ability to 20 prove motive on one of her other claims against other defendants. (See id.) 21 Ms. Mansfield provides no authority to support this proposition. Although she 22 cites several cases, none of them involves a certification dispute. See Goodwin v. Hunt ORDER- 10 1 Wesson, Inc., 150 F.3d 1217, 1219-22 (9th Cir. 1998); Lindhal v. Air France, 930 F.2d 2 1434, 1435-38 (9th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1002-09 (9th 3 Cir. 1985). Instead, all of Ms. Mansfield’s cases deal with summary judgment motions in 4 garden-variety employment discrimination cases. See id. These cases hold that 5 discriminatory motive is a question for the jury when the plaintiff produces sufficient 6 evidence that the employer’s stated motivation was a pretext for discrimination. They 7 have nothing to say, however, about the court’s obligation to hold an evidentiary hearing 8 on Westfall Act certification challenges when the certification determination might 9 impact the plaintiff’s ability to argue a pretextual motive to a jury with respect to a 10 different claim against a different defendant. See id.; see also Osborn, 549 U.S. at 25111 53. Thus, the court rejects Ms. Mansfield’s third assignment of error. 12 In sum, Ms. Mansfield provides no basis for reconsideration of the court’s order 13 rejecting her challenge to the United States’ certification without an evidentiary hearing. 14 See Local Rules W.D. Wash. LCR 7(h)(1). The court therefore DENIES Ms. Mansfield’s 15 motion for reconsideration. Ms. Mansfield failed to disprove the United States’ 16 certification that Ms. Jones-Pfaff and Ms. Reichow did not engage in the tortious conduct 17 alleged by Ms. Mansfield. She also failed to produce evidence sufficient to create a 18 genuine dispute of material fact with respect to the correctness of the United States’ 19 certification. Accordingly, the United States’ certification stands. 20 B. The United States’ Motion for Summary Judgment 21 Summary judgment is appropriate if the evidence, when viewed in the light most 22 favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to ORDER- 11 1 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 2 P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cnty. of L.A., 3 477 F.3d 652, 658 (9th Cir. 2007). The moving party bears the initial burden of showing 4 there is no genuine issue of material fact and that he or she is entitled to prevail as a 5 matter of law. Celotex, 477 U.S. at 323. If the moving party meets his or her burden, 6 then the nonmoving party “must make a showing sufficient to establish a genuine dispute 7 of material fact regarding the existence of the essential elements of his case that he must 8 prove at trial” in order to withstand summary judgment. Galen, 477 F.3d at 658. 9 The Westfall Act provides that upon substitution of the United States the suit 10 becomes a suit against the United States governed by the FTCA. 28 U.S.C. § 2679(d)(2). 11 The FTCA, in turn, requires that no action shall “be instituted upon a claim against the 12 United States for money damages . . . unless the claimant shall have first presented the 13 claim to the appropriate Federal agency and his claim shall have been finally denied by 14 the agency . . . .” 28 U.S.C. § 2675(a). In addition, a plaintiff must present her claim to 15 the appropriate federal agency within two years of the date on which the claim accrues. 16 Staples v. United States, 740 F.2d 766, 768 (9th Cir. 1984) (citing 28 U.S.C. § 2401(b)). 17 If the plaintiff fails to follow this procedure, her claims against the United States are 18 subject to dismissal. See Jerves v. United States, 966 F.2d 517, 518-19 (9th Cir. 1992). 19 In its motion for summary judgment, the United States argues that Ms. Mansfield’s 20 claims against it should be dismissed because she has failed to file a claim with the VA 21 and more than two years have passed since her claims accrued. (MSJ at 2-4.) 22 ORDER- 12 1 The court agrees with the United States and GRANTS its motion for summary 2 judgment. The undisputed facts show that Ms. Mansfield has never filed a claim with the 3 VA (MSJ at 3; Bradshaw Decl. at 1), and that more than two years have passed since her 4 claims accrued (see 3d Am. Copml. ¶¶ 12, 19, 21 (alleging that the events at issue in this 5 lawsuit took place in the spring and summer of 2011). Furthermore, the court notes that 6 Ms. Mansfield does not contest the United States’ motion. (See Mot. to Cert. at 9 (“The 7 USA’s motion to dismiss USA under the federal 2 year limitations period is before the 8 court. (Dkt. 94) It is self evident [sic] that Mansfield’s tort claims were filed three years 9 after March 2011 and will be dismissed under the federal limitations rule.”).) The United 10 States is therefore entitled to judgment as a matter of law on Ms. Mansfield’s claims 11 against it. 12 C. Ms. Mansfield’s Motion to Certify 13 Ms. Mansfield asks the court to certify an interlocutory appeal under 28 U.S.C. 14 § 1292(b) or, in the alternative, to enter final judgment under Federal Rule of Civil 15 Procedure 54(b). (See Mot. to Cert. at 1.) With both requests, Ms. Mansfield seeks to 16 expedite her appeal on the issue of whether the court was required to grant her an 17 evidentiary hearing before resolving her challenge to the United States’ certification. 18 (See id. at 4-5, 7, 9-11.) The court denies Ms. Mansfield’s motion. 19 1. Certificate of appealability under 28 U.S.C. § 1292(b) 20 Pursuant to 28 U.S.C. § 1292(b), the court may certify for appeal an otherwise 21 non-appealable order where “such order involves a controlling question of law as to 22 which there is substantial ground for difference of opinion and . . . an immediate appeal ORDER- 13 1 from the order may materially advance the ultimate termination of the litigation.” 28 2 U.S.C. § 1292(b). The “question of law” element of Section 1292(b) requires “an 3 abstract legal issue” that the court of appeals can “decide quickly and cleanly without 4 having to study the record.” Ahrenholz v. Bd. of Trustees of Univ. of Ill., 219 F.3d 674, 5 677 (7th Cir. 2000); Simmons v. Akanno, No. 1:09-cv-00659-GBC (PC), 2011 WL 6 1566583, at *3 (C.D. Cal. Apr. 22, 2011) (citing Estate of Kennedy v. Bell Helicopter 7 Textron, Inc., 283 F.3d 1107, 1116 (9th Cir. 2002); Ahrenholz, 219 F.3d at 677). Ms. 8 Mansfield’s motion falters on this requirement. The theory of Ms. Mansfield’s proposed 9 appeal would be that courts must evaluate certification challenges as motions for 10 summary judgment and hold evidentiary hearings whenever there is a genuine dispute of 11 material fact. (See Mot. to Cert. at 4-5, 7, 9-11; Mot for Reconsid. at 3-4.) Even 12 assuming that the Ninth Circuit agrees with Ms. Mansfield on that score, however, the 13 Ninth Circuit could not resolve whether an evidentiary hearing was required in this case 14 without sifting through the record to determine whether Ms. Mansfield raised a genuine 15 dispute of material fact. As such, Ms. Mansfield’s proposed appeal does not involve a 16 controlling question of law under Section 1292(b), and therefore a certificate of 17 appealability is inappropriate here. See Schoenborn v. Stryker Corp., Civ. No. 08-141918 AA, 2011 WL 5881647, at *1-2 (D. Or. Nov. 21, 2011) (citing Ahrenholz, 219 F.3d at 19 676-77) (explaining that “whether the party opposing summary judgment ha[s] raised a 20 genuine issue of material fact” is not a “question of law” under Section 1292(b)). 21 2. Final judgment under Fed. R. Civ. P. 54(b) 22 Federal Rule of Civil Procedure 54(b) provides, in pertinent part: ORDER- 14 1 2 3 When an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. 4 Fed. R. Civ. P. 54(b). The Supreme Court has enumerated a two-part test for 5 determining whether a court may enter a final judgment pursuant to Rule 54(b). 6 Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7-10 (1980). First, the court 7 must determine that it is dealing with a final judgment. Id. at 7. Second, the court 8 must determine whether there is any just reason for delay. Id. at 8. “It is left to 9 the sound judicial discretion of the district court to determine the ‘appropriate 10 time’ when each final decision in a multiple claims action is ready for appeal.” Id. 11 (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 (1956)). The court 12 finds that just reason exists to delay and therefore does not address whether it is 13 dealing with a final judgment. 14 Ms. Mansfield argues that there is no just reason to delay her appeal from the 15 court’s certification ruling because immediate appeal would conserve judicial and party 16 resources. (See Mot. to Cert. at 9-11.) Specifically, she contends that her dismissed 17 claims and her still-pending First Amendment claims are sufficiently related such that a 18 reversal by the Ninth Circuit on the certification issue might require a retrial of her First 19 Amendment claims. (See id. at 4-5, 9-11.) Given that trial is only a few months away 20 (see Sched. Ord. (Dkt. # 47) at 1 (setting trial for October 19, 2015)), Ms. Mansfield’s 21 argument assumes that the court will stay the remainder of the case while an appeal is 22 pending. As such, although Ms. Mansfield does not explicitly request a stay, the court ORDER- 15 1 interprets Ms. Mansfield’s motion as requesting both a final judgment under Rule 54(b) 2 and a stay. 3 Viewing Ms. Mansfield’s motion in this light, the court finds that just reasons 4 exist to delay Ms. Mansfield’s appeal. See Curtiss-Wright Corp., 446 U.S. at 8. In 5 particular, the court finds that entering final judgment and a stay would unduly prejudice 6 Dr. Palmer and Ms. Fletcher. This case has been pending for over a year and is now 7 entering its final stages. (See generally Dkt.) Dr. Palmer and Ms. Fletcher are in the 8 process of preparing a dispositive motion. (Resp. re Cont. at 7.) A stay pending appeal 9 would halt Dr. Palmer and Ms. Fletcher’s pre-trial work at a late stage, keep the claims 10 against them hanging over their heads for a considerable time, and might not result in any 11 clarification as to those claims. The court finds, therefore, that just reason exists to delay 12 appeal of the court’s certification ruling. See also Wood v. GCC Bend, LLC, 422 F.3d 13 873, 879 (9th Cir. 2005) (“Because [plaintiff’s] case is itself routine and partial 14 adjudication of one of several related claims or issues is likewise routine, granting her 15 Rule 54(b) request does not comport with the interests of sound judicial administration.”). 16 Accordingly, the court DENIES Ms. Mansfield’s motion to certify in its entirety. 17 D. Ms. Mansfield’s Motion to Continue 18 Ms. Mansfield requests a 90-day extension of the remaining case schedule 19 deadlines, beginning with the June 22, 2015, discovery cutoff through the October 19, 20 2015, trial date. (See Mot. to Cont. at 1.) She argues that such an extension is 21 appropriate owing to various factors outside her control that have limited her ability to 22 conduct discovery. (See id.; see also 2d Jacobson Decl. ¶ 2.) In particular, Ms. ORDER- 16 1 Mansfield identifies the following factors: “a 6 month state-law discovery-blackout 2 period” imposed unilaterally by Defendants in connection with their anti-SLAPP motion; 3 the “primacy given by the court to determining the Osborne [sic] certification issues once 4 the court ordered discovery to commence” after ruling on the anti-SLAPP motion; 5 Defendants’ lack of cooperation regarding certain discovery requests; time spent on post6 certification-hearing motions; and the need for further discovery, including “up to a 7 dozen depositions.” (2d Jacobson Decl. ¶ 2.) Ms. Mansfield asserts that these factors 8 have reduced her discovery period to an unreasonably short time. (Id. ¶¶ 1-2.) 9 Pursuant to Federal Rule of Civil Procedure 16(b)(4), “[a] schedule may only be 10 modified for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “Good 11 cause” for purposes of Rule 16 focuses on the diligence of the party seeking to modify 12 the pre-trial scheduling order. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 13 607-08 (9th Cir. 1992). Parties must “diligently attempt to adhere to that schedule 14 throughout the subsequent course of the litigation.” Jackson v. Laureate, Inc., 186 15 F.R.D. 605, 607 (E.D. Cal. 1999). Furthermore, the court’s scheduling order in this case 16 warned the parties that the deadlines it provided are “firm dates” that can be changed 17 only by court order and only “upon good cause shown: failure to complete discovery 18 within the time allowed is not recognized as good cause.” (Sched. Ord. at 2.) 19 Ms. Mansfield has failed to show good cause for an extension of the remaining 20 case schedule deadlines. First, Ms. Mansfield appears to have exaggerated several of her 21 claimed obstacles to discovery—in particular, she offers no evidence to show that a six22 month discovery blackout occurred. (2d Jacobson Decl. ¶ 2.) Although Defendants ORDER- 17 1 insisted on a stay of discovery while their anti-SLAPP motion was pending, that stay 2 lasted from September 11, 2014, when Defendants filed their anti-SLAPP motion, to 3 December 16, 2014, when the court resolved the anti-SLAPP motion. (See 1st Jacobson 4 Decl. at 8, 10; anti-SLAPP Mot.; 12/16/14 Order; Resp. re Cont. at 4; Berntsen Decl. 5 (Dkt. # 100) ¶ 3.) This period barely exceeds three months. 4 In addition, several of Ms. 6 Mansfield’s alleged obstacles have been self-imposed—she decided, against the 7 suggestion of defense counsel, not to conduct discovery on her First Amendment claims 8 between December 16, 2014, and March 16, 2015 (see Berntsen Decl. ¶ 5, at 7-8), and 9 she chose to file three motions in the wake of the court’s ruling on her certification 10 challenge. 5 Finally, Ms. Mansfield has neglected to identify 7 of the 12 witnesses whose 11 depositions she contends remain to be taken (see Resp. re Cont. at 3; Mot. to Cont.; 2d 12 Jacobson Decl.), and has not explained why she has been unable to fit any particular 13 deposition within the remaining time for discovery (see Mot. to Cont.; 2d Jacobson 14 Decl.). 15 16 4 20 5 The court also notes that the current discovery deadline was set according to the parties’ request in their joint status report. (See Sched. Ord. at 2; JSR (Dkt. # 45) at 5.) That report was 17 signed and filed on September 19, 2014, eight days after Defendants filed the anti-SLAPP motion and seven days after Defendants had informed Ms. Mansfield of their belief that a 18 statutory discovery stay would be in place during the pendency of the anti-SLAPP motion. (Compare JSR at 1 with anti-SLAPP Mot. at 1 and 1st Jacobson Decl. at 8, 10.) Thus, at the 19 time Ms. Mansfield requested the present discovery cutoff date, she knew that Defendants intended to insist on an anti-SLAPP discovery stay. The court finds little merit in Ms. Mansfield’s suggestion that the United States’ motion for summary judgment has unduly restricted her ability to conduct discovery (see 2d Jacobson 21 Decl. ¶ 2 (“[D]efendant USA has filed one post-Osborne [sic] motion . . . to intrude upon more days of the discovery period.”)), as she has not filed a response to that motion and has admitted 22 in other filings that she does not oppose it (see Dkt.; Mot. to Cert. at 9). ORDER- 18 1 In sum, Ms. Mansfield has not shown that despite her diligence she is unable to 2 complete discovery within the time allowed by the court’s scheduling order. See 3 Johnson, 975 F.2d at 607-08. Accordingly, the court finds that Ms. Mansfield has not 4 demonstrated good cause for a modification of the scheduling order. See id.; Fed. R. Civ. 5 P. 16(b)(4); (Sched. Ord. at 2.) The court therefore denies her motion to continue. 6 7 IV. CONCLUSION For the foregoing reasons, the court DENIES Ms. Mansfield’s motion for 8 reconsideration (Dkt. # 97), GRANTS the United States’ motion for summary judgment 9 (Dkt. # 94), DENIES Ms. Mansfield’s motion to certify (Dkt. # 96), and DENIES Ms. 10 Mansfield’s motion to continue (Dkt. # 95). The court therefore DISMISSES the claims 11 against Defendants the United States, Ms. Jones-Pfaff, and Ms. Reichow with prejudice. 12 (See also OA Min. Entry; OA Trans.) 13 Dated this 17th day of June, 2015. 14 16 A 17 JAMES L. ROBART United States District Judge 15 18 19 20 21 22 ORDER- 19
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