United States District Court, D. Nevada
KENT J. DAWSON, District Judge.
Before the Court is a Motion for Summary Judgment (#87) filed by Defendants, including Clark County, Nevada. Plaintiffs, including David Cooper, opposed the motion (#97) and Defendants replied (#113).
To begin, this Court previously struck twelve of the parties' filings as "thoroughly deficient, requiring extensive supplementation and correction." (#86 at 2). The Court then set the parties the task of "winnow[ing] irrelevant and improper material, " "distill[ing] the remainder into a single filing." Id . Given the astounding factual and legal disarray of the parties' subsequent briefing, it appears that these basic principles continue to evade application. As further opportunities will doubtless be squandered, and in the interest of judicial economy and moving this case to a final conclusion, the Court will deal with the filings as they are. The factual background of this matter is familiar to the parties and to the Court, and so will not be recounted here.
II. Legal Standard for Summary Judgment
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). Summary judgment may be granted if the pleadings, depositions, affidavits, and other materials in the record show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).
A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Uncorroborated and self-serving testimony, without more, will not create a genuine issue of material fact. See Villiarimo v. Aloha Island Air Inc. , 281 F.3d 1054, 1061 (9th Cir. 2002). Conclusory or speculative testimony is also insufficient to raise a genuine issue of fact. Anheuser Busch, Inc. v. Natural Beverage Distribs. , 69 F.3d 337, 345 (9th Cir. 1995).
The moving party bears the initial burden of showing the absence of a genuine issue of material fact. See Celotex , 477 U.S. at 323. Once that burden is met, the nonmoving party then has the burden of setting forth specific facts demonstrating that a genuine issue exists. See Matsushita , 475 U.S. at 587; FED. R. CIV. P. 56(e). If the nonmoving party fails to make a sufficient showing of an essential element for which it bears the burden of proof, the moving party is entitled to summary judgment. See Celotex , 477 U.S. at 322-23.
Defendants petition for summary judgment, arguing "mootness." But Defendants do not successfully argue that the matter now pending before the Court is moot (nor is it likely that Defendants could do so). Rather, Defendants argue that Plaintiffs had no legal right to the subject property at the time the denial of the business license was appealed, making that appeal moot. (#87 at 13:16-19). Defendants reason that because that appeal was moot, summary judgment should issue here as there is no longer a "live controversy" before the Court as required under Article III.
Defendants' argument fails for at least two reasons. First, Defendants have failed to demonstrate that Plaintiffs had no legal right to the subject property, preventing summary judgment on this ground. Second, and perhaps more importantly, Defendants' argument is unsupported by logic or the law. Defendants leave unbridged the chasm between the possible mootness of the underlying appeal and mootness before this Court.
Mootness means that a court should not issue a decision, because a decision is unnecessary. Firefighters Local Union No. 1784 v. Stotts , 467 U.S. 561, 597 (1984) (Blackmun, J., dissenting) ("[A] central purpose of mootness doctrine is to avoid an unnecessary ruling on the merits."). Logically, while mootness provides a reason not to render a decision, it does not follow that once a decision has been made by a state tribunal, that decision is invalid if it is later discovered that the underlying question was moot. Nor has Defendant provided any authority to that effect. The time to argue the mootness of Plaintiffs' appeal of the denial of a business license was during the pendency of that denial. Defendants cannot argue that this Court must deny Plaintiffs' claims under equal protection etc., due to mootness of the state license proceedings.
IV. Equal Protection
The denial of a business license to Plaintiffs "does not implicate a fundamental right or a suspect classification...." Squaw Valley Dev. Co. v. Goldberg , 375 F.3d 936, 944 (9th Cir. 2004) (overruled on other grounds by Action Apartment Ass'n, Inc. v. Santa Monica Rent Control Bd. , 509 F.3d 1020, 1025 (9th Cir. 2007)). Thus, to succeed under Equal Protection, Plaintiffs must establish a "class of one" by demonstrating that Clark County (1) intentionally (2) treated [Plaintiffs] differently than other similarly situated [businesses], (3) without a rational basis. Gerhart v. Lake Cnty., Mont. , 637 F.3d 1013, 1022 (9th Cir. 2011) (citing Vill. of Willowbrook v. Olech , 528 U.S. 562, 564 (2000)). Where, as here, an equal protection claim is based on selective enforcement of valid laws, a plaintiff can show that the rational basis is merely a pretext for an ...