Davis v. Guam et al

Motion

D. GuamApril 12, 2016

Office of the Attorney General Elizabeth Barrett-Anderson Attorney General of Guam Li t igat ion Div is ion 590 S. Mar ine Corps Dr ive Tamuning, Guam 96913 o USA (61 t) 475-3324 o (67 t) 472-2493 (Fax) www guamag org At torneys for the Government of Guam IN THE DISTRICT COURT OF GUAM TERRITORY OF GUAM ARNOLD DAVIS, on behalf of himself and al l) Civi l Case No. I 1-00035 others similarly situated, ] ) Plaintiff. ) ) VS' I ) GOVERNMENT OF GUAM; GUAM ) ELECTION COMMISSION; ALICE M. ) TAIJERON; MARTHA C. RUTH; JOSEPH F. ) MESA; JOHNNY P. TAITANO; JOSHUA F. ) TENORIO; and DONALD I. WEAKLEY, in ) the official capacities, 1 ) Defendants. ) DEFENDANT GOVERNMENT OF GUAM'S MOTION TO AMEND SCHEDULING ORDER PURSUANT TO FED. R. CIV. P. 16 (B) (4) AND cvLR r6-l(BX3) SO AS TO ALLOW DEFENDANT TO FILE AN AMENDED ANSWER AND SECOND MOTION FOR SUMMARY JUDGMENT ASSERTING NEITHER TERRITORIES OR OFFICIALS OF UNITED STATES TERRITORIES ARE "PERSONS'' UNDER 42 U.S.C. $ 1983 COME NOW, Defendants, by and through the Attorney General of Guam, and hereby move, pursuant o Fed. R. Civ. P. l6 (B) (4) and CVLR 16-1(BX3) fbr an order revising the scheduling order allowing Defendants to file an Amended Answer and second summary judgment motion asserting that Plaintiffs Section 1983 actions should be dismissed because neither Guam, nor its officials, are "persons" under 42 U.S.C. $ 1983. Attached is the declaration Page I o l '6 Defendant CovCu'sMot iontoAnendSchedul tngOrderPursuant ro l" -ed. l lCivP 16(8)(1)&CI ' l 'Rl6 '1(B)(3) Arnold Davis vs GovGuam et a l : Distr ic t Cou( Case No I l -00035 Case 1:11-cv-00035 Document 122 Filed 04/12/16 Page 1 of 6 of Kenneth Orcutt in support of Defendants' motion, which by this reference is incorporated herein as if fully set forth. I. DEFENDANTS' MOTION FOR AN ORDER REVISING THE SCHEDULING ORDER SHOULD BE GRANTED A. STATEMENT OF FACTS This case involves a claim by a resident of Guam who is not eligible to vote in a plebiscite concerning Guam's future political relationship with the United States because he is not a Native Inhabitant. Mr. Davis alleses that Guam's Native Inhabitant classification is an unlawful proxy for race. He seeks a declaration that limiting registration to Native Inhabitants is unlawful, and an injunction against using any registry other than Guam's general voter registry in determining who is eligible to register fbr, and vote in, the plebiscite. Plainti f f sues under 42 U.S.C. Section 1983. See ECF l, Compl. paras 34 and 40. Unti l recently, it has been assumed that Guam officials could be sued in a section 1983 action for injunctive and declaratory relief. See e.g. Guam Society of Obstetricians & Gynecologisls v. Ac la,962 F.2d 1366 (9th Ci r . 1992) ; Paeste v . Government of Guam,785 F,3d 13l l (9 tn Ci r . 20 I 5) . However, after the Ninth Circuit rendered its decision in Paeste, the Guam Attomey General's Office was contacted by a major U.S. law firm who offered to do a petition for certiorari to the U.S. Supreme Court on this issue. The attorney who offered to write the petition is a former law clerk of Justice Anthony Kennedy. On February 1,2016, the Government of Guam filed a petition for certiorari. (See petition for certiorari attached as exhibit A to Declaration of Kenneth Orcutt.) The U.S. Supreme Court has not yet decided whether to grant the petition, however the issue in the petition is applicable to the case at bar where Mr. Davis has sued Guam officials for injunctive and declaratory relief under 42 U.S.C. Section 1983. The Page 2 of '6 DeJenttant Govcu's Motion to Amend SchedulingOrder Pursuant to l"ed.RCiv P l6(8)(1) A CI'LRl6-1(B)(3) Arnold Davis vs Govcuam et al. Distr ictCourtCase No I l-00035 Case 1:11-cv-00035 Document 122 Filed 04/12/16 Page 2 of 6 issue raised in the petition is a substantial issue which Defendants believe should be considered in this plebiscite litigation. Regardless of whether the U.S. Supreme Court grants certiorari, Defendants want to preserve this issue for possible review by the U.S. Supreme Court. As a result, Defendants seek to amend their answer and file a second motion for summary judgment to assert hat Plaintiff s $ 1983 actions should be dismissed because neither Guam, nor its officials, are "persons" under 42 U.S.C. $ 1983. (Defendants' proposed amended answer is attached as Exhibit B to the declaration of Orcutt.) B. DISCUSSION Under Rule 16, the court is required to issue a scheduling order as soon as practicable, and the order "must limit the time to join other parties, amend the pleadings, complete discovery, and file motions." Fed.R.Civ.P. l6(bX3)(A). Once a scheduling order has been filed pursuant o Rule 16, the "schedule may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. l6(bX4). "Rule l6(b)'s 'good cause' standard primarily considers the diligence of the party seeking the amendment." Johnson v. Mammoth Recreations, [nc.,975 F.2d 604,609 (9th Cir.1992). Good cause may be found where the moving party shows it assisted the court with creating a workable scheduling order, that it is unable to comply with the scheduling order's deadlines due to matters not reasonably foreseeable at the time the scheduling order issued, and that it was diligent in seeking a modification once it became apparent it could not comply with the scheduling order. Jacl