United States District Court, W.D. Washington, Tacoma
ORDER DENYING DEFENDANTS' MOTION FOR
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on the motion for
reconsideration of Defendants Olympia School District (the
“District”), Jennifer Priddy, Frederick Stanley,
Barbara Greer, William Lahmann, and Dominic Cvitanich
(collectively “Defendants”). Dkt. 42. The Court
has considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby denies the motion for the reasons stated below.
August 18, 2017, the Court entered an order granting in part
and denying in part Defendants' motion for summary
judgment. Dkt. 39. On August 29, 2017, Defendants moved for
reconsideration. Dkt. 42. On August 29, 2017, the Court
issued an order requesting a response from Plaintiffs. Dkt.
44. On September 8, 2017, Plaintiffs responded. Dkt. 46. On
September 14, 2017, Defendants replied. Dkt. 49.
for reconsideration are governed by Federal Rule of Civil
Procedure 60 and Local Rules W.D. Wash. LCR 7(h). LCR 7(h)
Motions for reconsideration are disfavored. The court will
ordinarily deny such motions in the absence of a showing of
manifest error in the prior ruling or a showing of new facts
or legal authority which could not have been brought to its
attention earlier with reasonable diligence.
Ninth Circuit has described reconsideration as an
“extraordinary remedy, to be used sparingly in the
interests of finality and conservation of judicial
resources.” Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting 12
James Wm. Moore et al., Moore's Federal Practice
§ 59.30 (3d ed. 2000)). “[A] motion for
reconsideration should not be granted, absent highly unusual
circumstances, unless the district court is presented with
newly discovered evidence, committed clear error, or if there
is an intervening change in the controlling law.”
Id. (quoting 389 Orange Street Partners v.
Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).
Newly Discovered Facts
move for reconsideration on two factual bases. First, they
point out the Court's previous order relied on the fact
that Ms. Chambers's declaration claimed that she made a
complaint to the District in 2007, but subsequent depositions
have revealed that the complaint was not made until 2009.
See Dkt. 42 at 2-3, 9. Second, Defendants argue that
Mr. McGuigan's declaration inaccurately suggests that he
named Gary Shafer as his child's bus driver in his 2007
complaint to the District-another inaccuracy which was not
discovered until a recent deposition. Id. at 4-5.
The newly discovered facts presented by Defendants relate to
the Court's decision in the following two ways: (1) the
Court relied on the purported fact that Ms. Chambers and Mr.
McGuigan made their complaints to the District in 2007 to
conclude that a triable issue of fact exists as to whether
the District had actual knowledge of sexual grooming prior to
the minor Plaintiffs' abuse, see Dkt. 39 at
12-13; and (2) the Court relied on the purported fact that
Ms. Chambers and Mr. McGuigan made their complaints to the
District in 2007 to conclude that there are triable issues of
fact as to whether Defendants implemented customs or
practices in deliberate indifference to their students'
welfare that proximately caused plaintiffs' sexual abuse.
fact that Ms. Chambers's report was not made until the
beginning of the 2008-2009 school year substantially weakens
Plaintiffs' Title IX claims that the District had actual
notice of the readily-recognizable sexual grooming prior to
Plaintiffs' sexual abuse during the 2008-2009 school
year. It similarly weakens Plaintiffs' argument that the
District's customs and Defendants' alleged failure to
investigate complaints of readily-recognizable sexual
grooming proximately caused the minor Plaintiffs' abuse.
while these newly discovered facts weigh significantly on the
strength of Plaintiffs' case, the Court concludes that
they do not alter the outcome of the previous order. Even
though Ms. Chambers did not make her complaint until late
2009, the fact remains that the District received Mr.
McGuigan's complaint in 2007. That complaint described
how the driver of his daughter's bus, Gary Shafer, would
regularly make unscheduled stops mid-route in order to play
games of hide and seek with kindergarten children, during
which he would touch and tickle them. Dkt. 34-3 at 62-64;
Dkt. 47 at 41-43. There is no question that two reports of
behavior readily identified as evidence of sexual grooming
provide a stronger basis for finding that the District had
actual knowledge of sexual misconduct than does a single
report. Nonetheless, Mr. McGuigan's 2007 report is alone
sufficient to sustain the Court's previous order;
specifically, that a jury could find that “although the
District may not have subjectively viewed the complained-of
conduct as sexually motivated, the District nonetheless had
actual knowledge of grooming occurring on their buses that
qualified as ‘sexual misconduct' under applicable
state regulations specifically implemented for the
administration of school employees.” Dkt 39 at 13.
Moreover, although Ms. Chambers's report was not received
until late 2009, that the complaint was purportedly ignored
is still relevant to whether Mr. McGuigan's 2007
complaint was ignored pursuant to a policy or custom
implemented by Defendants in deliberate indifference to the
risk of student abuse.
the fact that the Mr. McGuigan's complaint did not
identify Gary Shafer by name has no effect on the Court's
analysis. Mr. McGuigan provided the District with route
information, including the name of the student and the school
and kindergarten class to which the student was being driven.
Dkt. 47 at 51. Mr. McGuigan called both the student's
elementary school as well as the District's
transportation department to lodge the complaint. Dkt. 47 at
42. A jury could reasonably conclude that the Defendants