National Coalition of Latino Clergy and Christian Leaders et al v. Arizona, State of et al

Filing 39

RESPONSE in Opposition re 35 First MOTION to Amend/Correct 13 Amended Complaint,First MOTION to Amend/Correct 13 Amended Complaint, filed by Arizona, State of, Jan Brewer. (Bouma, John)

National Coalition of Latino Clergy and Christian Leaders et al v. Arizona, State of et al

Doc. 39

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

John J. Bouma (#001358) Robert A. Henry (#015104) Joseph G. Adams (#018210) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Phone: [phone] Fax: [phone] [e-mail] [e-mail] [e-mail] and Joseph A. Kanefield (#015838) Office of Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, AZ 85007 Telephone: [phone] Fax: [phone] [e-mail] Attorneys for Defendants Janice K. Brewer, Governor of the State of Arizona, and the State of Arizona IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA National Coalition of Latino Clergy and Christian Leaders ("CONLAMIC"), et al., Plaintiffs, v. State of Arizona, et al., Defendants. No. CV-10-0943-PHX-SRB GOVERNOR BREWER AND THE STATE OF ARIZONA'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

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Snell & Wilmer L.L.P.

Dockets.Justia.com

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

Plaintiffs' Motion for Leave to File Second Amended Complaint (doc. 35) should be denied because plaintiffs' proposed amended pleading fails to demonstrate that any plaintiff has standing to pursue these claims. Plaintiffs also have delayed their pursuit of this litigation and currently seek to pursue the same claims (using many of the exact same allegations) that plaintiffs are pursuing in some of the other actions also challenging the validity of SB 1070. Permitting plaintiffs to pursue their proposed second amended complaint would only create duplicative litigation, invite abuse, and waste judicial resources. MEMORANDUM OF POINTS AND AUTHORITIES I. PROCEDURAL HISTORY This is one of seven actions that were filed in this Court challenging the constitutionality of various provisions of SB 1070. In contrast to the other six actions, the plaintiffs in this case have made only a half-hearted effort to pursue this action since they filed their initial Complaint on April 29, 2010 (doc. 1). Plaintiffs never served the Complaint and only filed the magistrate election form when ordered to do so by the Court. See Docs. 7 (Order to Show Cause) & 8 (plaintiffs' election to assign the case to a district judge). On June 6, 2010, plaintiffs filed their Amended Complaint (doc. 13), which fails to comply with LRCiv 7.1 and contains numerous typographical errors. Plaintiffs then waited to have the summonses issued for their Amended Complaint until July 13, 2010 (docs. 22 & 23) and did not serve the Amended Complaint until July 14, 2010. Although plaintiffs' Amended Complaint seeks injunctive relief, plaintiffs have not moved for an injunction. On July 15, 2010, defendant Arpaio moved to dismiss the Amended Complaint on the grounds that plaintiffs lack standing to pursue their claims and that the Amended Complaint fails to state a claim upon which relief can be granted (doc. 26). On August 4, 2010, Governor Brewer and the State moved to dismiss plaintiffs' Amended Complaint on the same grounds (doc. 30), which defendants Romley and Goddard joined on the same day (docs. 31 & 33). Plaintiffs opposed the motions to dismiss on July 29, 2010
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Snell & Wilmer L.L.P.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

and August 23, 2010 (docs. 28 & 34), respectively. On August 25, 2010, plaintiffs moved for leave to file a second amended complaint (doc. 35). In their proposed second amended complaint, plaintiffs seek to "address many of the concerns raised in Defendants' motions to dismiss," see Pls.' Mot. at 3, but, in many instances, plaintiffs have simply copied and pasted the allegations from pleadings in other actions challenging SB 1070 to bolster their claims and factual allegations.1 For example, the allegations in paragraphs 53 through 56 of plaintiffs' proposed second amended complaint track (and, in some instances, copy verbatim) the allegations in paragraphs 206 through 208 of the Complaint in Friendly House, et al. Whiting, et al., Case No. CV10-01061-PHX-SRB. The allegations in paragraph 58 of the proposed second amended complaint copy verbatim paragraph 182 of the Friendly House Complaint. The allegations in 63 of the proposed second amended complaint track the allegations in paragraph 28 of the Complaint in United States v. Arizona et al., Case No. CV10-01413-PHX-SRB. And paragraphs 66 through 70 of the proposed second amended complaint copy verbatim the allegations in paragraphs 186 through 190 of the Friendly House Complaint. II. ARGUMENT Rule 15 of the Federal Rules of Civil Procedure provides that "[t]he court should freely give leave" to amend pleadings "when justice so requires." Fed. R. Civ. P. 15(a)(2). However, this policy of liberality "must be tempered with considerations of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Cervantes v. Pratt, No. CV04-1004-PHX-SRB, 2008 WL 348918, at *3 (D. Ariz. Feb. 8, 2008) (quoting Schlachter-Jones v. General Tele., 936 F.2d 435, 443-44 (9th Cir. 1991)).

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Snell & Wilmer L.L.P.

1

Plaintiffs offer no explanation as to why they did not previously assert the claims and factual allegations in the proposed amended pleading. See generally Pls.' Mot.
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

Here, plaintiffs' Motion should be denied because the amendment is futile. For the reasons stated in the Motion to Dismiss filed by Governor Brewer and the State (doc. 30), plaintiffs lack standing to pursue their claims because plaintiffs have not demonstrated that they would suffer an actual or imminent injury from the enforcement of any provision of SB 1070. See Mot. to Dismiss at 3-11. Plaintiffs' proposed second amended complaint does not correct this basic deficiency. Although the proposed second amended complaint more clearly articulates the theories under which plaintiffs seek to invalidate Sections 1, 2, 3, 5, 6, and 10 of SB 1070, the standing allegations remain speculative and conclusory. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009) ("[A] complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'") (citation omitted); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (to have standing, a plaintiff must allege facts that demonstrate "an injury in fact ­ an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical") (internal quotations and citation omitted). Plaintiffs' delay also warrants denial of their Motion. See, e.g., Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 803 (3d Cir. 2010) ("Delay is `undue' when it places an unwarranted burden on the court or when the plaintiff has had previous opportunities to amend.") (citing Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir. 2008)). Although a two-month delay in seeking leave to amend is generally not considered "undue" delay, the circumstances of this case are unique. In addition to the plaintiffs in this case, six other sets of plaintiffs have filed suit to challenge SB 1070 on the same grounds plaintiffs raise here. Unlike many of the other plaintiffs, the plaintiffs in this case did not attempt to move for injunctive relief, and plaintiffs' first two complaints were confusing and replete with typographical errors. In their proposed second amended complaint, plaintiffs have corrected many of these issues,2 but in doing so, they simply reproduce the same claims and allegations that are already being litigated
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Snell & Wilmer L.L.P.

The proposed second amended complaint still fails to comply with LRCiv 7.1.
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

in the actions brought by the United States and the Friendly House plaintiffs. Permitting an amendment in such circumstances would only waste judicial resources and invite abuse. See Fed. R. Civ. P. 1 (the Rules of Civil Procedure "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding"). III. CONCLUSION For these reasons, defendants the State of Arizona and Governor Brewer request that the Court deny plaintiffs' Motion for Leave to File Second Amended Complaint. Respectfully submitted this 13th day of September, 2010. SNELL & WILMER L.L.P.

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By s/John J. Bouma John J. Bouma Robert A. Henry Joseph G. Adams One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 and By s/Joseph A. Kanefield with permission Joseph A. Kanefield Office of Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, AZ 85007 Attorneys for Defendant Janice K. Brewer, Governor of the State of Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

CERTIFICATE OF SERVICE I hereby certify that on September 13, 2010, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the CM/ECF registrants on record.

s/John J. Bouma

11974819

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