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In Castillo v. Johnson, No. CV-17-04688-PHX-DLR, 2019 WL 6827472 (D. Ariz. Dec. 13, 2019), the defendants asked for a do-over but they would probably word things differently next time.
On the surface, the defendants filed a motion to certify the Filed Rate Doctrine to the Arizona Supreme Court. In the motion, however, they actually asked the District Judge to reconsider his previous rulings rejecting both the Filed Rate Doctrine and the defendants' previous motion to certify the question. The District Judge's ruling on the motion to reconsider is worth noting for two reasons.
The first of these two noteworthy rulings is of interest to all lawyers, at least to those who litigate and consider whether to ask a court to reconsider previous rulings. In particular, in his first ruling the District Judge pointed out the failures he saw in the motion to reconsider the judge's previous refusal to certify the defendants' question: "Defendants have made no showing ...
- that the Court's determination was manifestly erroneous,
- have presented no new facts, and
- have produced no new legal authority that could not have been brought to its attention earlier with reasonable diligence to justify its request.
The Court stands by its prior determination."
Castillo, 2019 WL 6827472, at *1 (numbering added to what is otherwise a verbatim quotation from the Judge's opinion).
On the substance of the motion, the District Judge pointed out again, as he had earlier in the case, that the Arizona State Commission with jurisdiction over the defendants' rate requests already concluded that it would not apply a Filed Rate Doctrine to immunize bribery. The plaintiffs were suing to challenge bribery and not to challenge rates, the judge said: "Rather, Plaintiffs are challenging the Bribery Defendants' conduct in inducing the setting of a higher rate base." Castillo, 2019 WL 6827472, at *2 (italics by the District Court).
The Defendants' insistence on characterizing the plaintiffs' claims in the case as actually challenging their filed rates, rather than challenging their conduct, showed up in how they phrased their proposed question which would have dealt with whether their rates had been "set too high," even if there was bribery. This is simply not how the judge in charge of the case saw the question. He wrote that even if the Court had been inclined to the view of certifying a Filed Rate Doctrine question to the Arizona Supreme Court, "it would not certify Defendants' proposed question." Castillo, 2019 WL 6827472, at *2 n.3.
The lesson here is that it is often better to "quit while you're ahead" in litigation just like it is often the best course to take in the rest of life.
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