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

Filing 42

REPLY to Response to Motion re 35 First MOTION to Amend/Correct 13 Amended Complaint,First MOTION to Amend/Correct 13 Amended Complaint, filed by Carmen Galindo, Moises Herrera, Fermin Leon, Laura Madera, National Coalition of Latino Clergy and Christian Leaders, Joe Rivera, Manuel Siguenza, Unknown Parties. (Galloni, Tania)

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National Coalition of Latino Clergy and Christian Leaders et al v. Arizona, State of et al Doc. 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tania Galloni Fla. Bar. No. 619221 FLORIDA IMMIGRANT ADVOCACY CENTER 3000 Biscayne Blvd., Ste. 400 Miami, Florida 33137 Telephone: 305.573-1106 Facsimile: 305.576.6273 Email: tgalloni@fiacfla.org Ben R. Miranda Arizona Bar No. 9515 LAW OFFICE OF BEN R. MIRANDA 826 West 3rd Avenue Phoenix, Arizona 85003 Telephone: 603.252.7555 William J. Sanchez Fla. Bar No. 749060 SANCHEZ LAW, LLC Lakeside Corporate Park 12915 Southwest 132nd Street, Suite 5 Miami, Florida 33186 Telephone: 305.232.8889 Facsimile: 305.232.8819 Email: imiglaw@aol.com ATTORNEYS FOR PLAINTIFFS UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA NATIONAL COALITION OF LATINO CLERGY ) AND CHRISTIAN LEADERS ("CONLAMIC"), ) PHOENIX, ARIZONA, ET AL., ) ) Plaintiffs, ) ) v. ) ) STATE OF ARIZONA, ET AL., ) ) Defendants. ) ) __________________________________________) CASE NO. 2:10-CV-00943-SRB PLAINTIFFS' REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Plaintiffs, by and through undersigned counsel, hereby file this Reply in Support of their Motion for Leave to File Second Amended Complaint. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION Defendants argue that the Court should deny leave to amend because Plaintiffs' action is "duplicative" of other challenges to S.B. 1070, involves "the same claims" and "many of the exact same allegations" and is based on the "same grounds" as the other actions, specifically citing the related case of Friendly House, et al. v. Whiting, et al., Case No. 10-cv-1061-PHXSRB. (Defts' Resp., DE 39 at 1-3.) Yet, in a separate filing served the very same day, Defendants argue that the State of Arizona's waiver of immunity in the Friendly House case should not carry over to this case because "this case involves different parties, different allegations, and largely different claims." (Defts' Reply in Support of Mot. to Dismiss, DE 38 at 3.) Defendants cannot have it both ways. Their opposition to Plaintiffs' first request to amend contradicts itself at every turn, and does not overcome the liberal policy of allowing amendment, particularly at this early stage of the litigation. Plaintiffs therefore respectfully request that their motion be granted. ARGUMENT Defendants argue that Plaintiffs' motion should be denied because they claim the proposed amendment is futile and because of Plaintiffs' purported delay. With regard to the first argument, Defendants only state generally that Plaintiffs' amended allegations are "speculative and conclusory" as to standing, without citing a single paragraph of the proposed Second Amended Complaint, or giving any example of how Plaintiffs' amended allegations are deficient. (Defts' Resp. at 3.) As Defendants did not address any of Plaintiffs' amended standing allegations, they have not met their burden to show that Plaintiffs' amendment would be futile. See, e.g., TriQuint Semiconductor, Inc. v. Avago Technologies Ltd., 2010 WL 3034880, at *9 (D. Ariz. 2010) ("`The party opposing amendment bears the burden of showing prejudice,' futility, or one of the other permissible reasons for denying a motion to amend.") (quoting DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987)); see also Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir.1988) ("a proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense"). -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As to delay, Defendants' argument is supported neither by fact nor law. Plaintiff National Coalition of Latino Clergy and Christian Leaders ("CONLAMIC"), joined by parishioners, small business owners and other members of the Arizonan Latino community, filed this action on April 29, 2010. (DE 1.) Under the Federal Rules of Civil Procedure, Plaintiffs were permitted at least 120 days to serve the complaint on defendants, which in this case would have been August 27, 2010. Fed.R.Civ.P. 4(m). It can hardly be said, then, that Plaintiffs' having served Defendants on July 14, 2010 constitutes undue delay. This is Plaintiffs' first motion to amend (having previously amended once as of right before serving defendants), the motion is filed in part in response to Defendants' first motion to dismiss (and so at the earliest stage of the litigation), and the motion has been filed before the Court has even issued a scheduling order imposing deadlines on amendments. That other individuals have also filed challenges to S.B. 1070 has no bearing on the right of CONLAMIC, La Hermosa Church, or any of the individual parishioners, business owners and other Plaintiffs to bring this action, or on their request to amend the complaint. If Defendants' concern is judicial resources, the proper vehicle to raise that concern would be through a motion to consolidate, by which the court can streamline actions that involve common questions of law or fact. See Fed.R.Civ.P. 42(a). Defendants, however, have not moved to consolidate. Additionally, they cite no authority for the proposition that a court may deny leave to amend in one action simply because it may share common questions of law or fact with a related action. See Fournier v. Johnson, 677 F.Supp. 2d 1172, 1173 (D.Ariz. 2009) (factors to be considered in determining whether to allow amendment are bad faith, undue delay, prejudice, and futility). Defendants argue that granting Plaintiffs' first request to amend the complaint will create duplicative litigation, invite abuse and waste judicial resources. Yet in the same breath, they complain that Plaintiffs have not pursued this action vigorously enough, including by not serving the original complaint and not moving for a preliminary injunction when others did, both of which in fact have simplified the litigation and conserved the Court's resources. (Defts' Resp. at 1, 3.) Again, Defendants cannot have it both ways. -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: The Federal Rules of Civil Procedure provide that the Court "should freely give leave [to amend a pleading] when justice so requires." Fed.R.Civ.P. 15(a)(2). Here, Plaintiffs move to amend to (1) add a claim for violations of the First Amendment freedoms of religion and association; (2) state a separate claim under the Equal Protection Clause; (3) consolidate and clarify claims under the Supremacy Clause (Counts II and IV) and Fourteenth Amendment (Counts I, VI, and VI); (4) withdraw two individual plaintiffs and all class allegations; and (5) supplement the factual allegations in support of Plaintiffs' claims. Plaintiffs' proposed Second Amended Complaint significantly streamlines the factual allegations, addresses many of the concerns raised by Defendants' in their motions to dismiss, and reduces the claims for relief from six to four.1 Plaintiffs therefore respectfully request that their motion be granted. V. CONCLUSION Based on the foregoing, Plaintiffs respectfully request that the Court grant their Motion for Leave to File Second Amended Complaint. September 23, 2010 RESPECTFULLY SUBMITTED, /s/ Tania Galloni FLORIDA IMMIGRANT ADVOCACY CENTER /s/ Ben R. Miranda LAW OFFICE OF BEN R. MIRANDA /s/ William J. Sanchez SANCHEZ LAW, LLC Defendants' complaint that some of Plaintiffs' allegations are too similar to those in other pending actions (Defts' Resp. at 2) relates only to Plaintiffs' legal allegations, not allegations of fact. As the related actions all challenge the legality of S.B. 1070, it should come as no surprise that there will be common questions of law. -4- 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on September 23, 2010 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Thomas P. Liddy Maria R. Brandon MARICOPA COUNTY OFFICE OF SPECIAL LITIGATION SERVICES 234 North Central Avenue, Suite 4400 Phoenix, Arizona 85004 Telephone No. (602) 372-3859 Facsimile No. (602) 506-1416 tliddy@mail.maricopa.gov brandonm@mail.maricopa.gov Attorneys for Defendant Joseph Arpaio John J. Bouma, Esq. Robert A. Henry, Esq. Joseph G. Adams, Esq. SNELL & WILMER, L.L.P. 1 Arizona Center 400 East Van Buren Phoenix, Arizona 85004-0001 jbouma@swlaw.com bhenry@swlaw.com jgadams@swlaw.com Joseph A. Kanefield OFFICE OF THE GOVERNOR State of Arizona 1700 West Washington Street, 9th Floor Phoenix, Arizona 85007 jkanefield@az.gov Attorneys for Defendant Governor Janice K. Brewer Christopher Arthur Munns Office of the Attorney General 1275 W. Washington Street Phoenix, Arizona 85007 Email: Christopher.munns@aza.gov -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mary Ruth O'Grady Office of the Attorney General 1275 W. Washington Street Phoenix, Arizona 85007 Email: mary.ogrady@asag.gov Attorneys for Defendants Richard M. Romley and Terry Goddard /s/ Tania Galloni FLORIDA IMMIGRANT ADVOCACY CENTER -6-

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