United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. Nye, Chief U.S. District Court Judge
before the Court is Plaintiff Derek Thomas'
(“Thomas”) Motion for Reconsideration (Dkt. 71);
Motion for Entry of Judgment under Rule 54(b) (Dkt. 72);
Motion for Discovery (Dkt. 84); and Motion Requesting Oral
Argument (Dkt. 85). Defendant Michael Akers'
(“Akers”) has also filed a Motion for
Reconsideration (Dkt. 82).
reviewed the record and briefs, the Court finds that the
facts and legal arguments are adequately presented.
Accordingly, in the interest of avoiding further delay, and
because the Court finds that the decisional process would not
be significantly aided by oral argument, the Court will
address the motions without oral argument. Dist. Idaho Loc.
Civ. R. 7.1(d)(1)(B). Accordingly, Thomas' Motion
Requesting Oral Argument (Dkt. 85) is DENIED.
reasons outlined below, the Court also finds good cause to
GRANT in PART and DENY in PART Thomas' Motion for
Reconsideration (Dkt. 71), DENY Thomas' Motion for Entry
of Judgment (Dkt. 72), STAY Akers' Motion for
Reconsideration (Dkt. 82) for ninety days, and GRANT
Thomas' Motion for Discovery (Dkt. 84).
background of this case is set forth in the Court's prior
order (Dkt 70). The Court incorporates that background by
reference here. Following the Court's order on
Defendants' Motions for Summary Judgment (Dkt. 70),
Thomas filed a Motion for Reconsideration (Dkt. 71), and,
alternatively, a Motion for Entry of Judgment under Rule
54(b) (Dkt. 72). Shortly thereafter, Akers filed a Motion for
Reconsideration in light of the Supreme Court's decision
in Nieves v. Bartlett, 139 S.Ct. 1715 (2019).
asks the Court to reconsider its decision under Federal Rule
of Civil Procedure 59(e). This Rule does “permit a
district court to reconsider and amend a previous order,
” but the Ninth Circuit instructs that the Rule offers
an “extraordinary remedy, to be used sparingly in the
interests of finality and conservation of judicial
resources.” Carroll v. Nakatani, 342 F.3d 934,
945 (9th Cir. 2003) (quoting 12 James Wm. Moore et al.,
Moore's Federal Practice § 59.30 (3d ed. 2000)).
“[T]here are four limited grounds upon which” a
district court may grant a motion for reconsideration:
“(1) the motion is necessary to correct manifest errors
of fact or law; (2) the moving party presents newly
discovered evidence; (3) reconsideration is necessary to
prevent manifest injustice; or (4) there is an intervening
change in the law.” Coffelt v. Yordy, No.
1:16-CV-00190-CWD, 2016 WL 9724059, at *1 (D. Idaho Nov. 30,
2016) (citing Turner v. Burlington N. Santa Fe R.R.
Co., 338 F.3d 1058, 1063 (9th Cir. 2003)). “A
losing party cannot use a Rule 59(e) motion to relitigate old
matters or to raise arguments that could have been raised
before the entry of judgment.” Id. (citing
Sch. Dist. No. 1J, Multnomah Cty. v. ACandS,
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)).
Court has previously explained:
A motion to reconsider an interlocutory ruling requires an
analysis of two important principles: (1) Error must be
corrected; and (2) Judicial efficiency demands forward
progress. The former principle has led courts to hold that a
denial of a motion to dismiss or for summary judgment may be
reconsidered at any time before final judgment. Preaseau
v. Prudential Insurance Co., 591 F.2d 74, 79-80 (9th
Cir. 1979). While even an interlocutory decision becomes the
“law of the case, ” it is not necessarily carved
in stone. Justice Oliver Wendell Holmes concluded that the
“law of the case” doctrine “merely
expresses the practice of courts generally to refuse to
reopen what has been decided, not a limit to their
power.” Messinger v. Anderson, 225 U.S. 436,
444 (1912). “The only sensible thing for a trial court
to do is to set itself right as soon as possible when
convinced that the law of the case is erroneous. There is no
need to await reversal.” In re Airport Car Rental
Antitrust Litigation, 521 F.Supp. 568, 572 (N.D. Cal.
1981) (Schwartzer, J.).
The need to be right, however, must co-exist with the need
for forward progress. A court's opinions “are not
intended as mere first drafts, subject to revision and
reconsideration at a litigant's pleasure.”
Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123
F.R.D. 282, 288 (N.D. Ill. 1988).
Lancaster v. Kordsiemon, 1:15-CV-00239-BLW, 2016 WL
6471428, at *1 (D. Idaho Oct. 31, 2016).
long as a district court has jurisdiction over the case, then
it possesses the inherent procedural power to reconsider,
rescind, or modify an interlocutory order for cause seen by
it to be sufficient.” City of L.A. v. Santa Monica
BayKeeper, 254 F.3d 882, 885 (9th Cir. 2001) (quoting
Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th
Motions to Reconsider
their competing motions to reconsider, Thomas and Akers ask
the Court to reconsider numerous holdings in its prior order.
The Court considers each request in turn:
Finding that a reasonable officer could have found probable
cause existed to arrest Thomas
Thomas claims that the Court committed error when it held
that a reasonable officer could have found probable cause
existed to arrest Thomas. Thomas accuses the Court of
“neglect[ing] a profusion of exculpatory evidence
negating probable cause, as well as evidence of fabrication
and mischaracterization of evidence by defendant
Akers.” Dkt. 71, at 6. This is incorrect. While the
Court's order may not have specifically discussed
everything it considered in reaching its conclusions, the
Court considered the entire record, including every theory,
argument, and piece of potentially exculpatory evidence
presented by Thomas. Simply, reaching a different conclusion
than Thomas would have liked is not error.
raises a number of items he contends the Court ignored or
disregarded. See Dkt. 71-1, at 3-9. As an initial
matter, the Court notes that in reaching its decision on the
Motions for Summary Judgment, it considered every one of
these theories and pieces of evidence. Regardless, in an
effort to be as clear as possible, the Court will briefly
discuss a few of the items Thomas specifically raises in his
Motion to Reconsider.
Thomas contends that the Court ignored inconsistencies
between Akers' probable cause affidavit and S.K.'s
deposition testimony-which he contends serve as evidence that
Akers falsified his probable cause affidavit. Specifically,
Thomas states that “Akers attributed the following
identical, verbatim recitations of the following events from
both S.K. and Povlsen: “Mr. Thomas' blue Chevrolet
pickup truck accelerat[ed] away to the east at 45-50
MPH.” Dkt. 71-1, at 4. Thomas claims that later,
“against his own interests S.K. denied under oath that
he ever said this to Akers.” Id.
however, misconstrues S.K.'s later testimony. At his
deposition, S.K. was asked whether he made a statement to
Deputy Akers regarding Thomas' speed when leaving the
scene of the accident. S.K. said “I told [Akers] he
went from 35 to 45.” Dkt. 52-12, at 27. Shortly
thereafter, S.K. clarified that he may have given Akers an
estimation up to 50 miles per hour. Id. at 28. This
is the exact portion of S.K.'s deposition that Thomas
cites in support of his contention that S.K. “denied
under oath that he ever said this to Akers.” Construing
this as a denial of S.K.'s prior statement is a
mischaracterization of his deposition testimony and does
nothing to persuade the Court.
Thomas contends that Akers falsified his probable cause
affidavit by attributing a statement to S.K.'s
grandfather that he never made. Specifically, in his probable
cause affidavit, Akers wrote that Povlsen told him he was
inside his house when he “heard the sound of a vehicle
rapidly accelerating” and then stepped outside and
“saw a blue Chevrolet pickup truck accelerate to the
east at 45-50 MPH.” Dkt. 52-21, at 2. Thomas contends
that Povlsen actually said he “didn't see
anything.” Dkt. 71-1, at 5.
bases this theory on a statement Povlsen made to another
officer (Officer Higley) a few days after his initial
interview with Akers. Office Higley informed Povlsen that he
was there to talk to him about the incident, and Povlsen
replied “I actually told the officer that come out
there the first time, you know, I actually didn't see
anything.” Dkt. 52-20, at 2. Later, he told Officer
Higley “the actual incident I did not see.”
Id. at 6.
in his deposition testimony, Povlsen was asked about this
statement. Specifically, Plaintiff's Counsel said:
“[W]hen [Officer Higley] came out the first time, you
told him that you didn't see anything.” Dkt. 52-14,
at 6. Povlsen replied “I did not see the
accident.” Id. Plaintiff's Counsel sought
clarification from Povlsen regarding the meaning of that
statement, to which Povlsen replied “I didn't see
the accident-the impact.” Id.
in these subsequent statements are inconsistent with
Povlsen's initial statement to Akers that he “heard
the sound of a vehicle rapidly accelerating” and then
stepped outside and “saw a blue Chevrolet pickup truck
accelerate to the east at 45-50 MPH.” Dkt. 52-21, at 2.
In fact, at his deposition, Pavlsen once again affirmed that
he saw Thomas' truck driving away from the scene of the
alleged incident. The Court is unsure why Thomas continues to
mischaracterize these statements, but it considered these
theories in reaching its decision on the Motions for Summary
Judgment and found them unpersuasive.
Thomas argues that Akers ignored “substantial evidence
negating any suggestion that [S.K.'s damages tire and
slime on S.K.'s clothes] was caused by a collision from
behind, much less an intentional one.” Dkt. 71, at 8.
Thomas raises a number of concerns in this area that the
Court fully considered in reaching its prior decision. The
Court also carefully reviewed the photographs of S.K., his
bike, and Thomas' truck that Akers took the day of the
incident underlying this case. The photographs clearly show
green tire slim sprayed on S.K.'s clothes (Dkt. 52-6, at
1) and on his bike (Dkt. 52-6, at 3; Dkt. 52-7, at 1-3). They
also show an area of his tire that had sustained damage (Dkt.
52-7, at 2). While the Court recognizes that this evidence
presents some oddities (such as S.K.'s tire holding air
after the alleged incident and the lack of slime on
Thomas' truck), there are reasonable explanations for
these oddities besides S.K. fabricating the incident.
Ultimately, the Court considered all this evidence and
Thomas' various theories and held that a reasonable
officer in Akers' position could have found probable
cause to arrest.
said, Thomas correctly highlights poor phrasing used by the
Court in its prior order. In discussing the lack of slime on
Thomas' truck, the Court said “[t]his oddity,
standing alone, is not enough to overcome a finding of
probable cause.” Dkt. 70, at 10.
upon this sentence, Thomas contends that the Court applied an
erroneous legal standard in determining whether probable
cause existed. As Thomas correctly argues, probable cause
determinations are based upon the “totality of the
circumstances.” The Court understands Thomas'
concern, and agrees that the wording of this sentence could
potentially cause confusion. However, the Court also notes
that-despite its poor choice of words-it still applied the
correct legal standard. This is clear when the Court's
discussion of probable cause is read in its entirety.
example, in discussing the applicable legal standard, the
Court said that it must look to the “totality of the
circumstances.” Dkt. 70, at 7. At the outset of its
analysis, the Court stated that “[i]n viewing the
totality of circumstances known to Akers at the time of the
arrest, a prudent officer could have believed Thomas was
guilty of leaving the scene of an accident.”
Id. at 9. Finally, when summarizing its decision on
the matter, the Court said “[i]n sum, the Court finds
that-based upon the information known to Akers at the time- a
reasonable officer could have found probable cause to arrest
Thomas for hit and run.” Id. at 12.
these statements demonstrate (and as the Court's
analysis-when viewed it its entirety-makes clear), the Court
took into account all of the evidence, including potentially
exculpatory evidence, when determining whether a reasonable
officer could have found probable cause to arrest Thomas.
Thomas' Motion for Reconsideration isolates a poorly
worded sentence that the Court agrees should have been more
carefully crafted. That said, the Court's analysis
clearly applied the correct legal standard, and the Court
stands by its prior decision regarding probable cause to
highlights another sentence that the Court is less concerned
about. When discussing concerns over S.K.'s credibility,
the Court said “[w]hile Akers was at least somewhat
familiar with S.K. and Thomas prior to the events in
question-and may have even known of their strained
relationship-that does not automatically delegitimize his
finding of probable cause.” Dkt. 70, at 10-11.
response to this statement, Thomas states that he “has
not made such an argument and need not establish this. It is
just one brick among many others in a wall, which
were ignored by Akers and not considered by the Court,
clearly establishing a genuine issue of material fact.”
Dkt. 71, at 13 (emphasis in original). However, the very next
sentence of the Court's order states: “S.K.'s
reliability was simply one relevant consideration in
Akers' investigation.” Dkt. 70, at 11. Clearly, the
Court did not ignore concerns over S.K.'s credibility and
considered those concerns along with all of the other
“bricks” that made up the totality of the
circumstances known to Akers at the time of the arrest.
However, the Court reached a different conclusion than Thomas
advocated for. While that is undoubtably disappointing for
Thomas, it is not error.
Court understands that Akers' statements made after the
arrest are concerning and cast doubt over his motivations.
Yet the Court has a duty to apply the law fairly and
objectively. Unfortunately for Thomas, the law does not allow
the Court to consider Akers' subjective intent when
determining whether probable cause existed. Based upon the
objective evidence that makes up the totality of the
circumstances (and after thorough consideration of any
potentially exculpatory evidence known or not pursued by
Akers), the Court held that a reasonable officer in
Akers' position could have found probable cause to arrest
him. The Court stands by its decision on this matter.
such, Thomas' Motion for Reconsideration is DENIED in
PART as it relates to the Court's finding that a
reasonable officer in Akers' ...