West v. Mesa, City of et al

Filing 29

ORDER that Plaintiff's 27 Motion to File a Consolidated Complaint is granted in part and denied in part. The litigation schedule is revised. Discovery due by 4/17/2015. Dispositive motions due by 7/10/2015. Signed by Judge David G Campbell on 2/18/2015. (See Order for details.)(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carl West,

NO. CV 12-0657 PHX-DGC
Plaintiff,

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v.

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City of Mesa, et al.,

(CONSOLIDATED)
ORDER

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Defendants.

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Plaintiff has filed a motion to file a consolidated complaint. Doc. 27. The Court

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addressed the motion with the parties at a status conference on February 17, 2015. The

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Court will grant the motion in part and deny it in part. The Court will also adjust the

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litigation schedule as discussed at the conference.

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I.

Motion to File Consolidated Complaint.

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Although these consolidated cases have been pending for some time and have seen

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several complaints and amended complaints, a portion of the case has returned recently

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from the Ninth Circuit with directions to permit a revised complaint. In addition, now

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that the cases have been consolidated, the Court concludes that a single complaint should

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be filed to clarify the issues pending in the case. The Court advises the parties, however,

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that it does not intend to permit additional amendments. The deadline for amending the

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complaint in CV-14-254 passed on December 1, 2014, and CV-12-0657 has been

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pending for more than two years.

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Count 6 asserts claims for abuse of process against all Defendants other than Van

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Norman and Smith. Doc. 27-2 at 18. The Court previously granted judgment on the

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pleadings with respect to the abuse of process claims against Defendants Mesa and

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Jacobs. Doc. 21 at 3-4. The Court also dismissed the abuse of process claim against the

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United States with prejudice. Id. at 7. The remaining defendants in this count, Gordwin

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and his supervisor Truchon, are in the same position. As Judge Sedwick concluded and

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the Ninth Circuit affirmed, the abuse of process claim accrued in 2003 and is barred by

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the statute of limitations. Doc. 13 at 5 & n. 23; CV-14-254, Doc. 87, Ex. 1. The Court

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will therefore not grant leave to assert Count 6.1

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Counts 7 and 8 assert claims for fraud and negligent misrepresentation against

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Defendants Gordwin and Jacobs. Doc. 27-1 at 20-21. Judge Sedwick dismissed these

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claims against Jacobs as time-barred and the Ninth Circuit affirmed. Doc. 13 at 5 &

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n. 23; CV-14-254, Doc. 87, Ex. 1. For this reason, the Court already ruled that the claims

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cannot be asserted against Jacobs in this action. Doc. 21 at 7. The same ruling applies to

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the fraud and negligent misrepresentation claims against Gordwin. Judge Sedwick found

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that such claims accrued in 2003, the Ninth Circuit agreed, and the claims therefore are

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time-barred. Id. The Court will not grant leave to assert Counts 7 and 8.

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Count 9 asserts a claim for negligent supervision against Truchon. Doc. 27-2 at

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21-22. The Court previously held, on the basis of the rulings by Judge Sedwick and the

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Ninth Circuit, that claims for negligent supervision arising out of the supervision of

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Gordwin are time-barred. Doc. 21 at 8. The Court will not grant leave to assert Count 9.

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The consolidated complaint includes a section on punitive damages, but it is not

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labeled as a separate count. Doc. 27-2 at 23. The Court construes it as a request for a

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remedy and not as a separate count in the complaint. Defendants therefore need not

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address it in their motions to dismiss.

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Plaintiff need not file a revised complaint. They should file the proposed
consolidated complaint (Doc. 27-2). Count 6, and the other counts dismissed in this
order, will remain in the consolidated complaint for purposes of appeal, but will not be at
issue in this case.
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II.

Litigation Schedule.
As discussed with the parties on February 17, 2015, the Court revises the litigation

schedule as follows:
a.

Defendants shall file their motion to dismiss by March 6, 2015. Plaintiff

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shall file his response by March 16, 2015. Defendants shall reply by

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March 23, 2015.

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b.

The fact discovery deadline will be extended to April 17, 2015.

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c.

Plaintiff shall provide full and complete expert disclosures as required by
Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than

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April 10, 2015.

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d.

Defendants shall provide full and complete expert disclosures as required

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by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later

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than May 8, 2015.

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e.

Rebuttal expert disclosures, if any, shall be made no later than May 29,

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2015. Rebuttal experts shall be limited to responding to opinions stated by

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initial experts.

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f.

Expert depositions shall be completed no later than June 26, 2015.

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g.

The parties shall engage in good faith settlement talks by April 1, 2015.

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h.

Dispositive motions shall be filed by July 10, 2015.

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All other terms of the Scheduling Order (CV-14-254, Doc. 44) remain in effect

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with the exception of the Trial Scheduling Conference. The Court will set the trial date at

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the final pretrial conference.

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The parties are advised that the Court will not be inclined to grant further
extensions of this schedule, and should plan their discovery activities accordingly.

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IT IS ORDERED:

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1.

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Plaintiff’s motion for leave to file a consolidated complaint (Doc. 27) is
granted in part and denied in part as set forth above.

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2.

The litigation schedule is revised as set forth above.

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Dated this 18th day of February, 2015.

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