Case 5:17-cv-03385-SVK Document 33-1 Filed 11/13/17 Page 1 of 6

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Steven J. Andre
Attorney at Law CA #132633
2 26080 Carmel Rancho Blvd. 200B
Carmel, CA 93923
3 (831) 624-5786

4 Attorney for Plaintiff, STACY LININGER

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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14 Case No
STACY LININGER,
15 5:17-cv-03385-SVK
Plaintiff,
16 PLAINTIFF'S MOTION FOR NEW
v. TRIAL/ RECONSIDERATION OF
17 THE COURT'S 11/6/17 ORDER
RONALD PFLEGER, CITY OF
18 Date: January 9, 2018
CARMEL, DEAN FLIPPO, District Time: 9:30 am
19 Dept.: 6 (4tb Floor)
Attorney ofMonterey County California,
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and DOES 1-50,
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Defendants.
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23 TIDS COURT MAY RECONSIDER ITS RULING

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After a court enters an order, it may set aside or change its order pursuant to local
.25

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rules or Rule 60 of the Federal Rules of Civil Procedure. Ground v. Sullivan (S.D. Cal.

27 1992) 785 F.Supp. 1407, 1411 n.3. Granting relief under Rule 60 is a matter within the
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discretion of the district court. Thompson v. Housing Auth. ofLos Angeles (9th Cir. 1986)

2 782 F.2d 829, 832.

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Although there is no specific provision for reconsideration in the Federal Rules of
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Civil Procedure, courts of the Ninth District have traditionally entertained such motions,
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6 even on interlocutory orders. They have done so based upon Rule 59(e) 1 and 60(b)2 and
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upon a district court's "inherent procedural power to reconsider, rescind, or modifY an
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interlocutory order for cause seen by it to be sufficient." City ofL.A., Harbor Div. v. Sant
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10 Monica Baykeeper (9th Cir. 2001) 254 F.3d 882, 885-88.

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Such motions are properly entertained to correct manifest errors of law or fact or
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to present newly discovered evidence. Harsco Corp. v. Zlotnicky (3d Cir. 1985) 779 F.2d
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14 906, 909. The motion is not intended for the repetition of arguments previously

15 presented. Karr v. Castle (D.Del.l991) 768 F.Supp. 1087, 1093. However, a court
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should reconsider a prior ruling if it overlooked facts or precedent that reasonably would
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18 have altered the result. Id. That would be the case here, where this court ruled upon an

19 area of law not briefed or argued by the parties as a basis to dismiss defendant FLIPPO.
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TIDS COURT'S RULING OVERLOOKS CRITICAL PRECEDENT
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This court's order correctly recognizes that states and their agencies are immune

23 from suit, citing Howlett v. Rose (1990) 496 U.S. 356,365. Howlett also recognized that
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where a state opens its courts to suits against that state on state law claims, it cannot then
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assert a lack ofjurisdiction to hear comparable claims against the state brought under
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1That subsection provides for a party to bring a motion to alter or amend a judgment.
27 2Rule 60 provides in pertinent part that the court may relieve a party from an order " for the following reasons:
1) mistake, inadvertence, surprise. or excusable neglect;
28 2) newly discovered evidence .. .
6) any other reason that justifies relief.

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federal law due to sovereign immunity. Id. at 367-75. That immunity would, indeed,
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2 mean defendant FLIPPO would be sheltered from most private suits for liability for his
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wrongful acts as an agent of the state acting in his official capacity. The critical
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difference is that this case alleges that the wrongful acts in question here were violations
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6 of plaintiff's federal. constitutional rights

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The Eleventh Amendment to the Constitution bars suits in federal court against
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states by citizens of other countries and other states.3 In Hans v. Louisiana (1890) 134
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10 U.S. 1, the Supreme Court construed the Eleventh Amendment as also prohibiting suits

11 by a citizen against his or her own state. As a result, private parties may not sue a state or
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state agency by name in federal court unless Congress validly abrogates state sovereign
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14 immunity or the state waives its immunity. Pennhurst State School and Hospital v.

15 Halderman (1984) 465 U.S. 89, 100.4

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However, another Constitutional requirement comes into play in the analysis

18 which the treatment of the question by this court's order overlooks. The Supremacy
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Clause of the United States Constitution mandates that state laws or actions violating
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federal law are invalid. Because the Eleventh Amendment would immunize states and
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22 state officials from private suits to enforce federal rights, a conflict of constitutional
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imperatives emerges. In other words, how can the supreme law of our land be "supreme"
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3"The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
26 commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.'' U.S. Const. amend. XI.
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4 By contrast. local governments are not immunized from citizen lawsuits by the Constitution.
28 Mt. Healthy City School District Board ofEducation v. Doyle (1977) 429 U.S. 274; Monell v.
New York v. City Department ofSocial Services (1978)436 U.S. 658.

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if state officials can violate it with impunity, thumb their noses at it and stand on Eleventh

2 Amendment immunity?
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The Supreme Court weighed in on this question in Edelman v. Jordan (1974) 415
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5 U.S. 651, reconciling the two statutory provisions by holding that injunctive and
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declaratory relief against state officials does not violate the Eleventh Amendment, but
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that the Constitution prohibits recovery of retroactive monetary damages. Id. at 662-677.
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9 The Court in Edelman, addressing a claim seeking wrongfully withheld benefits,

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reviewed Eleventh Amendment and Supremacy Clause considerations. It looked to its
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observations in the "landmark" case of Ex Parte Young (1908) 209 U.S. 123, regarding

13 official acts in violation of federal law, stating: "The Court went on to say that a state
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official seeking to enforce in the name of a State an unconstitutional act 'comes into
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conflict with the superior authority of that Constitution, and he is in that case stripped of
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17 his official or representative character and is subjected in his person to the consequence
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of his individual conduct. The State has no power to impart to him any immunity from
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responsibility to the supreme authority ofthe United States.' Jd.,at 159-160." Id. at 680.
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21 The Court in Edelman held:

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Though a 1983 action may be instituted by public aid recipients such as
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respondent, a federal court's remedial power, consistent with the Eleventh
24 Amendment, is necessarily limited to prospective injunctive relief, Ex parte
Young, supra, and may not include a retroactive award which requires the payment
25 of funds from the state treasury, Ford Motor Co. v. Department ofTreasury [(1945)
26 323 u.s. 459].

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Id. at 677.

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Consequently, in suits brought under Ex Parte Young, such as the one at bar, a

2 private citizen bringing suit against a state official in that official's official capacity to
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enforce a federal law may obtain prospective (declaratory or injunctive) relief. But that
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citizen who is wronged by official misconduct may not sue the state official for damages.
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6 For this reason, the citizen's lawsuit must demonstrate an ongoing violation of federal
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law to support the suit for prospective relief. Green v. Mansour (1985) 474 U.S. 64.
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9 Damages are available against state officials who are sued in their individual (non-

10 official) capacities for violations of federal laws committed in the course of official duties
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(as this court has recognized in allowing plaintiff leave to amend to allege such liability).
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13 Such officials are able to claim qualified immunity. Scheur v. Rhodes (1974) 416 U.S.

14 232. This limited immunity bars recovery where the official's conduct "did not violate
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clearly established statutory or constitutional rights of which a reasonable person would
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have known." Harlow v. Fitzgerald (1982) 457 U.S. 800, 818. For police officers and

18 any deputy district attorneys sued in their individual capacities in this case for proceeding
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against plaintiff for exercising her First Amendment rights, that threshold for an award of
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damages is readily met. Velasquez v. City ofLong Beach (9th.,Cir. 2015) 793 F.3d 1010,
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22 1019-20. FLIPPO, however, is not the subject of a claim for damages.

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CONCLUSION
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Defendant FLIPPO, although a state official sued in his official capacity, is not
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immune from suit for prospective relief based upon the 1983 allegations here. Plaintiff
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28 requests that this court amend the portion of its order finding such 11th Amendment

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immunity applies to her request for prospective relief and which dismisses defendant

2 FLIPPO from the lawsuit.

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4 J -..

5 Dated: November / / , 2017

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Steve . Andre,. Attorney for Plaintiff,
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STACY LININGER
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