Hager v. Rodbell et al
Filing
104
ORDER denying Plaintiff's 96 Motion to Amend; granting Defendants' 97 Motion for Summary Judgment. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 11/13/12.(LAD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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No. CV10-2748-PHX-DGC
James Hager,
ORDER
Plaintiff,
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v.
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Chief Alan G. Rodbell; Det. Brent Vahle;
Det. Michelle LeFay; Det. Aaron Crawford;
Det. Kevin Orvis; Sgt. Robert Hoskin; Ofc.
Gary Gratz; Det. Michael Whitcomb; Ofc.
David Alvarado; Det. Laurie Swanson; Ofc.
J. Kleinheinz; Ofc. E. Rodriguez; Det.
Johnnie Ghiglia; Ofc. Alex Dyer; Ofc.
Trevor Anderson; Ofc. Andrew Marshall;
Ofc. Scott Galbraith; Ofc. James Peters;
Ofc. David Weaver, Ofc. Cody Dikeman;
Sgt. Richard Slavin; Ofc. Nathan Mullins;
Sgt. Thomas Myers; Ofc. Christopher
Ruscitti; Ofc. Jonathan Gambill; DOES 1100; XYZ Companies 1-100,
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Defendants.
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Defendants
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filed
a
supplemental
motion
for
summary
judgment
on
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October 12, 2012. Doc. 97. Plaintiff filed a motion to amend the complaint to add a
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party plaintiff on the same day.
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Docs. 98-103. For the reasons that follow, the Court will grant Defendants’ motion for
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summary judgment and deny Plaintiff’s motion to amend.
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I.
Doc. 96.
Both motions have been fully briefed.
Background.
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The factual background for the underlying claims is set forth in detail in the
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Court’s order granting in part and denying in part Defendants’ first motion for summary
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judgment. Doc. 41. The present motions were initially raised orally at the final pretrial
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conference.
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summary judgment based on Plaintiff’s alleged lack of standing. Id. In response to the
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new argument, Plaintiff requested permission to file a motion to add an additional party
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that Plaintiff believes would nullify the standing argument. Id. The Court permitted
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Plaintiff and Defendants to file their respective motions. Id.
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II.
Doc. 92.
Defendants requested leave to file an additional motion for
Legal Standard.
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A party seeking summary judgment bears the initial responsibility of informing
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the district court of the basis for its motion, and identifying those portions of the record
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which it believes demonstrate the absence of a genuine issue of material fact. Celotex
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Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the
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evidence, viewed in the light most favorable to the nonmoving party, shows “that there is
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no genuine dispute as to any material fact and the movant is entitled to judgment as a
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matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a
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party who “fails to make a showing sufficient to establish the existence of an element
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essential to that party’s case, and on which that party will bear the burden of proof at
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trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome
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of the suit will preclude the entry of summary judgment, and the disputed evidence must
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be “such that a reasonable jury could return a verdict for the nonmoving party.”
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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III.
Supplemental Motion for Summary Judgment.
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Two of Plaintiff’s claims survived the first motion for summary judgment.
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Doc. 41. Both relate to alleged damages resulting from the execution of a search warrant
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on the residence located at 9208 North 36th Drive in Phoenix, Arizona, on December 17,
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2009. Plaintiff alleged that five security cameras were ruined, the front door and the door
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frame were damaged, a two foot square portion of the living room carpet was burned, and
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ceilings in multiple rooms were cracked. The Court held that there was a factual dispute
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with respect to whether the search was reasonably executed and what property was
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damaged, and therefore denied summary judgment. Id. Later, in response to a motion in
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limine and because Plaintiff had failed to make the damages disclosures required by
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Rule 26(a)(1)(A)(iii), the Court precluded Plaintiff from presenting evidence concerning
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the monetary value of the damaged property. Doc. 82, ¶ 7.
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Defendants argue that even if the search was unreasonable and the police’s
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damage to the property was tortious, Plaintiff cannot show an ownership interest in any
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of the damaged property sufficient to demonstrate that he has actually suffered injury.
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The Court will address the damage to the house and the damage to the cameras
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separately.
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A.
Damage to House.
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Defendants have provided sworn testimony and legal records that support their
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claim that Allison Wolfe was the owner of the home that was searched. Doc. 98 at 3, 47.
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A 2009 warranty deed lists “Allison Wolfe, an unmarried woman,” as the owner of the
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property; a 2012 Maricopa County Property Tax Statement lists Ms. Wolfe as the
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property owner; and a 2012 property tax bill is addressed to Ms. Wolfe at the property.
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Doc. 98 at 47-51. Ms. Wolfe testified during her deposition that she is the sole owner of
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the property. Id. at 54 (“Q. Are you the sole owner of that property? A. Yes, Ma’am.”).
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She also testified that Plaintiff does not have an ownership interest in the property. Id. at
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56 (“Q. Did Mr. Hager have any legal ownership to the house? A. No. Not legal
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ownership, no.”). When Plaintiff testified during his criminal trial about the search at
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issue in this case, he testified that the house was not his. Id. at 20 (“Q. . . . First and
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foremost, was that your residence at all? A. No. Q. You got mail there? A. I have gotten
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mail at a few locations.”).
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In response, Plaintiff points to portions of Wolfe’s deposition in which she stated
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that Plaintiff “had possessions at my house” and “gave me money from time to time for
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rent.” Doc. 100 at 2-3. Plaintiff notes that the affidavit for the search warrant in this case
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stated that the property was Plaintiff’s residence and that his name appeared on the water
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bill at some time. Id. at 3. Plaintiff cites extensively from his own declaration submitted
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in connection with the original summary judgment briefing.
Doc. 35-2.
In that
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document, Plaintiff asserts that the residence was “my house.” Doc. 37-1 at 9, 21;
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Doc. 101 at 6-7.
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Only a genuine dispute of fact justifies denial of summary judgment and a trial.
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To create a genuine dispute of fact, Plaintiff must present sufficient evidence for a
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reasonable jury to return a verdict in his favor. Anderson, 477 U.S. at 248. Plaintiff has
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not presented such evidence with respect to any ownership interest in the house. Plaintiff
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does not dispute the authenticity of the warranty deed and tax records that show Wolfe to
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be the sole owner of the property. Plaintiff does not address Ms. Wolfe’s testimony that
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she owned the house and he did not, nor does he attempt to explain his criminal trial
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testimony that the house was not his. Although Plaintiff asserts that he lived at the
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property at some point in time (a fact with which Ms. Wolfe agrees), he does not dispute
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Ms. Wolfe’s testimony that he was not staying there at the time of the search and that she
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had not seen much of him in the months prior to the search. Doc. 98 at 55. The search
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warrant obtained by Defendants does suggest that Plaintiff lived at the property, but it
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does not assert that he owned the property. Thus, the only actual evidence of ownership
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provided by Plaintiff are several unexplained statements in his declaration that it was “my
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house.” Given the clear evidence that Ms. Wolfe was the sole owner of the property, a
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reasonable jury could not find from such conclusory assertions that Plaintiff owned the
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property. The Court concludes that Plaintiff has not presented sufficient evidence to
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avoid summary judgment on the claims for damage to the property.
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B.
Security Cameras.
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If the cameras were “fixtures” under Arizona law, they belonged to Wolfe as the
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property owner. Arizona law uses a three-part test for determining when a chattel has
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become a fixture. Murray v. Zerbel, 764 P.2d 1158, 1160 (Ct. App. 1988). “‘There must
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be an annexation to the realty or something appurtenant thereto; the chattel must have
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adaptability or application as affixed to the use for which the real estate is appropriated;
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and there must be an intention of the party to make the chattel a permanent accession to
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the freehold.’” Id. (quoting Fish v. Valley National Bank, 167 P.2d 107, 111 (1946)).
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The cameras in this case were affixed to the eaves of the house and to palm trees
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on the property, satisfying the first element of the test. Doc. 98 ¶ 10. The cameras had
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the clear application of monitoring the house and property, satisfying the second element.
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The key issue, therefore, is the third element of the test – whether the parties intended to
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make the cameras a permanent part of the property. This is consistent with Arizona case
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law, which recognizes the third element of the test as the most important. Id.
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When asked about the cameras in her deposition, Wolfe testified that they were
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installed by Plaintiff “because that is what he did for a living.” Doc. 98 at 59. Wolfe
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confirmed that the cameras were attached to her house, and testified that she never
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considered them to be Plaintiff’s cameras, id. at 59-60.
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Defendants shows that Ms. Wolfe owned the property, Plaintiff installed the cameras on
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the property because he did so for a living, and Ms. Wolfe never considered the cameras
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his. This evidence clearly suggests that Ms. Wolfe had no intention that the cameras be
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removed from her property. They were “a permanent accession to the freehold.” Fish,
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167 P.2d at 111.
Thus, the evidence from
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Plaintiff, who bears the burden of proving that he owned the cameras, presents
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only the slightest of evidence in support of his claim – he uses the word “my” two times
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in his declaration when describing the cameras. Doc. 37-1 at 9, 21. Plaintiff presents no
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other evidence that he owned the cameras. He does not dispute that they were attached to
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the real property, nor does he present evidence that he and Ms. Wolfe intended that they
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be removed at some point. Plaintiff provides no explanation or evidence as to when or
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how he obtained the cameras or why they were affixed to Ms. Wolfe’s property if not to
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remain there permanently. In sum, Plaintiff has presented no evidence from which a
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reasonable jury could conclude that he owned the cameras, and therefore has not created
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an issue of fact sufficient to defeat summary judgment. Anderson, 477 U.S. at 248.
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In summary, Plaintiff has not presented sufficient evidence that he owned the
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house and cameras that were damaged in the search and that constitute the sole remaining
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claims in this case. The Court therefore will enter summary judgment against Plaintiff.
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IV.
Motion to Amend.
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Plaintiff moves to amend his complaint to add Ms. Wolfe as an additional
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plaintiff. Doc. 96. Rule 15(a) states that when a party moves to amend before trial,
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“[t]he court should freely give leave when justice so requires.” District courts must
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consider four factors in considering whether to deny a motion to amend: (1) bad faith,
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(2) undue delay, (3) prejudice to the opposing party, and (4) the futility of amendment.
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In re Korean Air Lines Co., Ltd., 642 F.3d 685, 701 (9th Cir. 2011) (citing Kaplan v.
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Rose, 49 F.3d 1363, 1370 (9th Cir. 1994)); see also Forman v. Davis, 371 U.S. 178, 182
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(1962).
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Plaintiff argues that Defendants will not be prejudiced by the amendment because
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they were aware of Ms. Wolfe and her potential interest, as evidenced by the fact that
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Defendants took her deposition. Doc. 96 at 4. Defendants counter that because the
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underlying actions took place more than three years ago, both the state and federal
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statutes of limitations have run on Ms. Wolfe’s claim, and allowing her to join the present
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action will defeat the purpose of the statue of limitations. Doc. 99 at 2.
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Rule 15(c) allows for amendments to “relate back” to the date of the original
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complaint under limited circumstances. “[A]n amendment adding a party plaintiff relates
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back to the date of the original pleading only when: 1) the original complaint gave the
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defendant adequate notice of the claims of the newly proposed plaintiff; 2) the relation
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back does not unfairly prejudice the defendant; and 3) there is an identity of interests
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between the original and newly proposed plaintiff.” Immigrant Assistance Project v. INS,
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306 F.3d 842, 857 (9th Cir. 2002) (internal citations omitted).
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Defendants argue that relation back in this case would unfairly prejudice them
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because the new claims would have changed “the entire strategy behind the defense.”
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Doc. 99 at 5. Specifically, had they known that the party claiming injury was not the
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subject of the search warrant, that knowledge would have affected the discovery they
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would have conducted (and can no longer conduct as discovery deadlines have now
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passed) and the settlement potential of the claim. Id. Furthermore, they argue that there
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was undue delay in amending the complaint, as both Plaintiff and Ms. Wolfe were aware
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of all of the underlying facts from the time the search warrant was executed and have
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moved to amend only now that Plaintiff’s standing to bring the suit has been challenged.
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Id. Finally, Defendants note that Plaintiff and Wolfe are not related and have different
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claims and damages, and therefore do not share an “identity of interests.” Id. at 6-7.
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Plaintiff responds that the amendment was not the product of undue delay because
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“Defendants were actively litigating this case under the assumption that the present
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Plaintiff had both standing and at least some identifiable measure of damages.” Doc. 103
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at 2. Plaintiff also asserts that there is no unfair prejudice as the elements of the claim
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would remain the same if the new party was added. Id. at 2-3.
The Court concludes that the requested amendment should be denied for three
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reasons.
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First, the Court finds that Defendants would suffer substantial prejudice by the
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addition of a new Plaintiff after the final pretrial conference and only shortly before trial.
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Defendants are entitled to fashion their defense and make settlement decisions based on
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the claims and parties that appear in the complaint. They also are entitled to the repose
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guaranteed by the statutes of limitations. It is likely that many of Defendants’ pretrial
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decisions would have been different had the claims been asserted by Ms. Wolfe.
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Second, the Court finds that Plaintiff unduly delayed bringing this motion to
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amend. Trial is scheduled to start on January 8, 2013, less than two months from now.
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Discovery and motion practice are closed.
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property and cameras have been present since the discovery phase of this case, and it was
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incumbent on Plaintiff to seek amendment if it was needed to protect the claims in this
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case.
Issues concerning the ownership of the
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Third, the amendment would be futile because Plaintiff and Ms. Wolfe do not
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share an identity of interests sufficient for Ms. Wolfe’s claims to relate back to the time
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of the original pleading. Plaintiff was the subject of the search warrant at issue in this
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case; Ms. Wolfe was not. Ms. Wolfe owned the property; Plaintiff did not. Ms. Wolfe
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has shown no interest in being a plaintiff in this case, and Plaintiff does not argue that he
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was somehow protecting her interests by filing this action. In short, Plaintiff and Ms.
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Wolfe are different parties with respect to the subject of the search, the ownership of the
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property, and the interest in this case. The Court cannot conclude that they have an
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identity of interests. Thus, even if leave to amend were granted, Ms. Wolfe’s claim
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would be barred by the statutes of limitations.
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IT IS ORDERED:
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Defendants’ motion for summary judgment (Doc. 97) is granted.
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2.
Plaintiff’s motion to amend (Doc. 96) is denied.
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3.
The Clerk is directed to terminate this action.
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Dated this 13th day of November, 2012.
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