United States District Court, S.D. California
For John Gallagher, Plaintiff: Kirsten Courtney Jackson, LEAD ATTORNEY, Kasowitz Benson Torres & Friedman LLP, Los Angeles, CA.
For San Diego Unified Port District, Defendant: Ellen F Gross, LEAD ATTORNEY, San Diego Unified Port District, San Diego, CA; Simon M. Kann, San Diego Unified Port District, Office of Port Authority, San Diego, CA.
Hon. Anthony J. Battaglia, U.S. District Judge.
(1) ESTABLISHING CAUSATION STANDARD FOR PLAINTIFF'S ADA RETALIATION CLAIM; AND
(2) REQUESTING SUPPLEMENTAL BRIEFING.
The instant matter comes before the Court on Defendant the San Diego Unified Port District's (" District" ) Motion for Summary Judgment. (Doc. No. 91.) The District's renewed Motion comes after the Ninth Circuit issued a memorandum decision reversing this Court's prior grant of summary judgment to the District and entering judgment in favor of the District. The District now asserts that an intervening Supreme Court case, University of Texas Southwestern Medical School v. Nassar, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), renders the Ninth Circuit Mandate inapplicable to this action. Plaintiff, John Gallagher, opposes and argues the Ninth Circuit mandate is the law of the case and this Court must follow its directive. (Doc. No. 94.) The Court entertained oral arguments on April 11, 2014.
A. Factual Background
The District is a special district created by the California Legislature to operate, regulate, and manage the San Diego Bay. See Cal. Harb. And Nav. Code App. 1 (the " Port Act" ), § 4. The District has the right and duty to regulate and control the anchoring, mooring, towing, and docking of all vessels. Id. at § § 30, 55. The District is governed by the Board of Port Commissioners (" BPC" ), which has the power to adopt ordinances to carry out the District's granted powers, including regulating anchoring. Id. at § § 16, 21. The A-8 Anchorage was a federally-designated anchorage located in the South San Diego Bay that the District established as a free long-term anchorage. (Doc. No. 91 at 3.)
Plaintiff previously sought an accessible anchorage for his boat in 1998 when he filed the federal action, Gallagher v. San Diego Unified Port District, 98cv615 (JAH) (" Gallagher I " ), under Title II of
the American's with Disabilities Act (" ADA" ), 42. U.S.C. § 12101 et seq. ( Id. ) The main allegations in Gallagher I were that (1) the District denied the disabled access to San Diego Bay due to inadequate docks, ramps, and facilities (the " Accessibility Claims" ) and (2) the District's anchoring regulations discriminated against the disabled, resulting in their inability to anchor in the San Diego Bay, and that Plaintiff was denied access to anchor his vessel due to his disability (the " Anchoring Claims" ). ( Id. )
On August 8, 2000 Gallagher I resolved with respect to the Accessibility Claims when the parties signed a " Settlement Agreement and Release of Claims" (" Settlement Agreement" ). On November 17, 2000, in order to resolve the Anchoring Claims, the Port made a Third Offer of Judgment to Plaintiff wherein the District agreed to issue a permit to Plaintiff to anchor in a portion of the A-9 anchorage, free and long-term, subject to all the regulations applicable to the A-8 anchorage, as a reasonable accommo-dation. (" Third Offer of Judgment" ), Plaintiff accepted on November 27, 2000. (Doc. No. 91, Ex. 1.)
When Plaintiff accepted the Third Offer of Judgment, the BPC had previously approved Ordinance 2107, codified as UPD Code § 4.36 in August of 2000. Code § 4.36 required the issuance of a permit to be conditioned on meeting certain requirements to anchor in the A-8 Anchorage and could be renewed every six (6) months subject to a vessel inspection to ensure seaworthiness. UPD Code § 4.36(c)(5) (2000); see also Doc. No. 91, Ex. 5.
Plaintiff was issued a permit for the A-9 Disabled Anchorage in 2001, pursuant to the Third Offer of Judgment. The 2001 permit expressly stated " no expiration date." Despite the issuance of the permit in 2001, Plaintiff did not attempt to use it until July of 2006. (Doc. No. 91 at 4-5.) On July 24, 2006, Plaintiff called the District's mooring office to obtain a permit and was told he needed to bring his vessel down for an inspection to obtain a permit. Plaintiff did so, and a new Permit was issued dated July 26, 2006 with an expiration date of January 23, 2007 (" 2006 Permit" ). ( Id. at 5.) Two days later, Plaintiff's boat was vandalized, he did not notify the District of the vandalism or the removal of his boat from the anchorage for repairs. (Doc. No. 64, Ex. 22, Pl.'s Depo. 72: 1-6.)
In late 2005 and 2006, environmental, pollution, and crime issues pertaining to the A-8 Anchorage were causing significant problems and costs to the District. (Doc. No. 91 at 5.) The District held multiple public meetings to address these issues. ( Id. at Exs. 9-12, MPC Meeting Agendas.) On June 6, 2006, the BPC approved of eliminating the free and long-term anchoring in the A-8 Anchorage, effective October 1, 2008. (BPC June 6, 2006 Agenda, Id. at Ex. 11.) To encourage attrition in the A-8 Anchorage due to the impending closure, the BPC adopted amendments to UPD Code § 4.36 including, among others, discontinuing the issuance of new permits to anchor in the A-8 Anchorage and only reissuing " Permits to Vessels with current, valid Permits and meeting all the requirements and conditions in this District." UPD Code § 4.36(c)(11) (2006). The District notified all affected vessel owners by either mailing a copy of the new ordinance to the address on their permits or affixing a copy to their vessels.
Plaintiff's 2006 permit expired on January 23, 2007. Plaintiff claimed that he called to renew his permit in December 2006 or January 2007, but that the District ignored his calls. However, a review of the record demonstrated that Plaintiff had not provided any evidence to support this contention. The only record of a communication from Plaintiff is an April 3, 2007 telephone call seeking to renew his Permit, and a message of this call being forwarded to Bay Control Officer Corporal Laura Tossato, who asked her incoming replacement, Officer Matt Bishop, to return Plaintiff's call. (Doc. Nos. 69 at 3, 91 at 6-7.) Officer Bishop testified that he called Plaintiff that same day. However, Officer Bishop determined that Plaintiff's permit had expired and his vessel was not currently in the water. Plaintiff did not notify Officer Bishop of any prior attempts to renew his permit. (Decl. Of Officer Matt Bishop (" Bishop Decl." ) Doc. No. 91, Ex. 14 at 1-2.) Plaintiff inquired whether it was true that the District was no longer issuing A-8 permits, Officer Bishop confirmed this pursuant to the changes to the UPD Code and thus denied renewing Plaintiff's permit. On July 3, 2007, Plaintiff met with District counsel Ellen Gross Miles. On July 6, 2007, Plaintiff received a letter from the District dated July 6, 2007, stating that ...