HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE
ORDER
HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff Mark Stuart's Rule 59(e) Motion to Amend Judgment (Doc. 174). Defendants have filed a Response (Doc. 176) and Plaintiff has filed a Reply (Doc. 177).
I. Background
On March 16, 2021, the Court dismissed Plaintiff's First Amended Complaint (“FAC”) (Doc. 5) with prejudice. (Doc. 163). One of the claims that was dismissed was Count Two, a section 1983 claim for wrongful arrest against Defendants Scottsdale Mayor Lane, Scottsdale City Attorney Washburn, Assistant Scottsdale City of Attorney Santaella, and Scottsdale City Police Officers Cleary and Glenn. (Id. ¶¶ 90-95). The FAC alleges these Defendants “conspired together to chill Stuart's speech culminating with his arrest for trespassing at a Scottsdale City Council meeting.” (Id. ¶ 28). The FAC specifically alleges that City Attorney Washburn sent Plaintiff a letter prohibiting him from speaking about a ballot initiative during an upcoming city council meeting, and Assistant City Attorney Santaella, in turn, forwarded the letter to Officers Cleary and Glenn. (Id.) It further alleges that during the meeting, Mayor Lane “ordered the microphones to be turned off' and instructed Officers Cleary and Glenn to remove Plaintiff, which they did. (Id.) Officers Cleary and Glenn then ultimately arrested Plaintiff for trespassing. (Id.)
In dismissing Court Two, the Court found that “qualified immunity applies to Count Two, for wrongful arrest, and that Count is dismissed.” (Doc. 163 at 10). The Court stated that “[b]ecause Plaintiff's arrest was based upon his refusal to relinquish his perceived right to speak at the meeting, and because it is unclear whether he had a right to speak at the meeting, this Court cannot conclude that ‘any reasonable official' would have understood that the arrest was unlawful. Stated differently, the claimed right's contours are not sufficiently definite such that any reasonable official would have understood he was violating those rights.” (Id.)
Plaintiff sought appellate review of the Court's Order and subsequent judgment, including the Court's dismissal of Count Two. Ultimately, the Ninth Circuit Court partly affirmed and partly reversed the judgment. (Doc. 170-1 at 2). Count Two was one of two claims the Ninth Circuit remanded. In reversing Count Two, the appeals court disagreed this Court's ruling that Defendants were entitled to qualified immunity. The court said that Plaintiff had “plausibly alleged that Lane imposed a restriction on Stuart's speech at the city council meeting that was not reasonable and viewpoint neutral [and] that Cleary and Glenn handcuffed Stuart and ejected him from the city council meeting because of Stuart's valid exercise of his First Amendment rights during the public comment portion of the city council meeting.” (Doc. 170-1 at 3-4). The appellate court did not specifically address the allegations concerning Defendants Washburn and Santaella in its decision but concluded by saying “we reverse the judgment on Counts Two and Nine of the first amended complaint and remand for further proceedings on these claims only, and affirm the judgment on all other claims.” (Doc. 170-1 at 5).
Upon receipt of the Ninth Circuit's Mandate, on September 9, 2022, the Court amended its prior judgment as to Counts Two and Nine, and dismissed all Defendants except the City of Scottsdale, Lane, Cleary, and Glenn. (Doc. 171). The Clerk of Court entered an Amended Judgment the same day that dismissed Counts One, Three, Four, Five, Six, Seven, Eight, Ten, Eleven, Twelve, Thirteen, Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, and Nineteen of Plaintiff's First Amended Complaint. (Doc. 172). The Amended Judgment, however, does not explicitly dismiss individual defendants.
II. Legal Standards
Within 28 days after judgment is entered, a party may move “to alter or amend a judgment” under Federal Rule of Civil Procedure 59(e). Fed.R.Civ.P. 59(e). “Since specific grounds for a motion to amend or alter are not listed in the rule, the district court enjoys considerable discretion in granting or denying the motion.” McDowell v Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en banc) (per curiam) (cleaned up). Caselaw generally recognizes that a Rule 59(e) motion may be granted in four circumstances: when necessary (1) to correct manifest errors of law or fact upon which the judgment rests; (2) to present newly discovered or previously unavailable evidence; (3) to prevent manifest injustice; or (4) if the amendment is justified by an intervening change in controlling law. Allstate Ins. v. Herron, 634 F.3d 1101 (9th Cir. 2011). Rule 59(e) may not, however, “be used to relitigate old matters, or to raise arguments or present evidence that could have been made prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (citation omitted); see also Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (noting that Rule 59(e) offers an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources”) (internal quotation omitted); Bollenbacher v. Comm 'r of Soc. Sec., 621 F.Supp.2d 497, 501 (N.D. Ohio 2008) (stating that a Rule 59(e) “motion is not a substitute for appeal and does not allow the unhappy litigant to reargue the case”). Rule 60(b)(1) similarly allows a court to grant relief from an order or judgment for reasons of “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1).
Plaintiff moves for relief under Rule 59(e), but the error Plaintiff seeks to correct is in the Court's September 9, 2022, Order (Doc. 171), and thus is more properly brought under Rule 60(b)(1). Regardless of the standards applied, the Court finds cause to correct the error.
III. Discussion
Plaintiff says the Court erred in its September 9, 2022, Order when it dismissed Defendants Washburn and Santaella from the case. He says when the Ninth Circuit reversed the Court's dismissal of Count Two, it intended for Court Two to proceed against all Defendants against whom the claim was alleged. (Doc. 174 at 8). Defendants disagree and argue that the Ninth Circuit's memorandum decision only makes mention of Defendants Lane, Cleary, and Glenn, not Washburn and Santaella. (Doc. 176 at 2-3). Defendants further argue that the Ninth Circuit specifically denied Plaintiff's request to pursue his claims against Defendants Washburn and Santaella when it refused to rehear the case. (Id.)
The Court agrees with Plaintiff that it was error to dismiss Defendants Washburn and Santaella on remand. Count Two was undisputedly alleged against these Defendants. On appeal, the Ninth Circuit found that the Court erred in dismissing Count Two on qualified immunity grounds. Specifically, the Ninth Circuit found that Plaintiff had stated plausible allegations that Plaintiff had been removed from a public forum for expressing a certain viewpoint, in violation of the First Amendment, and that his wrongful arrest claim in Count Two could proceed. That the Ninth Circuit's ruling does not mention Defendants Washburn and Santaella by name is of no moment; the undersigned dismissed Count Two in its entirety and the appellate court reversed and remanded Count Two in its entirety. Nor is the Court persuaded that the Ninth Circuit specifically affirmed the dismissal of Count Two as to Defendants Washburn and Santaella when it denied Plaintiff's request for a panel rehearing. Plaintiff sought rehearing because he believed the court “dismissed claims One, Four, Six Seven and Eight, based on forfeiture of arguments regarding these claims in Stuart's opening brief,” not because he thought the court affirmed the dismissal of Count Two against Defendants Washburn and Santaella. Stuart v. City of Scottsdale, No. CV21-15504, Doc. 31-1 at 5. Finally, to the extent that Defendants believe “there is nothing in Count Two from which the reader could glean what those Defendants did to effectuate an unlawful arrest,” they may argue as much in an appropriate motion. But “[o]n remand, a trial court may not deviate from the mandate of an appellate court.” In re Matt of Beverly Hills Bankcorp, 752 F.2d 1334, 1337 (9th Cir. 1984). Here, that mandate says that Plaintiff may proceed with Count Two as alleged in his FAC.
To correct this error, the Court will amend its September 9, 2022, Order dismissing Defendants Washburn and Santaella from the case. Amendment of the Amended Judgment is unnecessary, however, as the Amended Judgment does not dismiss Defendants Washburn or Santaella. Accordingly, IT IS ORDERED that Plaintiff's Rule 59(e) Motion to Amend Judgment (Doc. 174) is granted. Defendants Washburn and Santaella are reinstated as Defendants in this matter.
IT IS FURTHER ORDERED that Page 2, lines 4-7 of the Court's September 9, 2022, Order (Doc. 171) shall be stricken, and those lines amended to state:
IT IS ORDERED that Plaintiff may proceed with the prosecution of his interference with protected First Amendment activity and wrongful arrest for exercising his First Amendment rights (Count Two) and his Monell claim (Count Nine) against Defendants City of Scottsdale, Washburn, Santaella, Lane, Cleary, and Glenn.