Martinez et al v. Avondale, City of et al

Filing 75

ORDER that Plaintiffs' #63 Motion to Amend Complaint is GRANTED. Plaintiffs must 1) remove all fictitious defendants named as John and Jane Does I-X and Black Entities I-V in the caption and body of the Second Amended Complaint; 2) remove all bolding in the caption of the Second Amended Complaint as such bolding is not authorized by the Local Rules; and 3) file the Second Amended Complaint, lodged at doc. 63-1 as modified by this Order, on all parties under Rule 5 of the Federal Rules of Civil Procedure within seven (7) days of the filing of this Order and promptly serve all Defendants. Signed by Magistrate Judge Lawrence O Anderson on 3/22/2013.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gregory Martinez, Sr., etc.; et al,

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Plaintiffs,

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vs.

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City of Avondale, etc; et al.,

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Defendants.

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No. CV-12-1837-PHX-LOA
ORDER

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For the second time in less than a month, the Court is called upon to resolve a
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disputed case management issue.
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On March 1, 2013, the last day to file an amended pleading under the Court’s case
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management order, Plaintiffs filed a Motion to Amend Complaint. (Doc. 63) Pursuant to
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Rule 15(a), Federal Rules of Civil Procedure (“Fed.R.Civ.P.”), they request leave to file
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another amended complaint to add seven Avondale police officers as defendants, in their
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individual and official capacities, and to allege violations of Plaintiffs’ rights under
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Fourth and Fourteenth Amendments to the United States Constitution pursuant to 42
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U.S.C. § 1983, and State-law claims of False Arrest and Imprisonment. (Id., ¶ 4 at 2)
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The proposed Second Amended Complaint is attached to Plaintiffs’ Motion, indicating
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the additions and deletions to the First Amended Complaint, as required by Local Rule
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(“LRCiv”) 15.1.
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Defendants oppose the Motion, claiming 1) Plaintiffs unduly delayed adding these
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defendants when they knew the identities of the police officers they seek to add and the
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factual basis of the new claims since prior to filing their original Complaint in August

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2012, and 2) by allowing amendment, it “will be impossible” for the parties to complete

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discovery by the Scheduling Order’s July 31, 2013 discovery deadline and the trial of this

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case will be delayed. (Doc. 69 at 5)

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After considering the parties’ briefing, the Ninth Circuit’s controlling, extremely

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liberal policy in allowing amendments when timely made pursuant to Rule 15(a), and the

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absence of demonstrated prejudice to Defendants, the Court is compelled to grant the

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Motion.

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I. Background

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This is a 28 U.S.C. § 1983 fatal police shooting case, arising out of an October 28,

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2011 9-1-1 call by the decedent’s mother, asking for police assistance with her 20-year

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old son, Gregory Martinez, Jr., deceased. Because of the parties’ familiarity with the facts

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and current allegations, the Court will only discuss herein the facts material to the

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amendment motion.

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Plaintiffs contend that, after Officer Kevin Sapp shot the decedent just outside of

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the Martinez’ home, seven Avondale police officers1unreasonably detained the decedent’s

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family members “for hours.” (Doc. 63 at 1) Although several family members, including

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three minors, witnessed the shooting death of their son or brother, Plaintiffs were

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allegedly not permitted to comfort each other, call their pastor, seek permission to use the

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restroom by seven Avondale police officers, who apparently had different roles in the

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separation and detention. (Id.) According to Plaintiffs, “[t]he restrictions placed on these

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traumatized individuals went beyond mere detention, but transmogrified into an actual

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arrest.” (Id.) Plaintiffs’ counsel represents that, “[d]uring depositions in this matter,

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Plaintiffs have learned the identities of the individual officers responsible for [Plaintiffs’]

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Specifically, Plaintiffs seek to name as defendants: Officers Albert Bates, Robert
Clement, Christopher Beckett, Reginald Sayles, Michael Unger, Edward Toxqui, and
Raymond Harris, all purportedly employed as Avondale police officers on October 28,
2011.
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wrongful detention and arrests.” (Id. at 2) Plaintiffs move for leave to amend their

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complaint for a second time since removal to add the individual officers as named

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defendants, as required by 42 U.S.C. § 1983, and allege the State-law intentional torts of

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False Arrest and Imprisonment.

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Defendants point out, and the docket confirms, Plaintiffs filed their initial

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Complaint in the Maricopa County Superior Court on August 2, 2012, alleging, inter alia,

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§ 1983 excessive force claims against Officer Sapp, and, with leave of the Court after this

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action was removed on August 29, 2012, Plaintiffs filed their First Amended Complaint

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on October 30, 2012. (Docs. 1-1 at 4-10; 19) Plaintiffs’ First Amended Complaint added

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decedent’s three minor siblings, I.M., M.M., and L.M.,2 as plaintiffs, whose interests in

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this action are represented by their parents and guardians ad litem, Plaintiffs Gregory

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Martinez, Sr. and Marisol Martinez. The First Amended Complaint also added § 1983

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wrongful seizure claims, alleging, among others, the police “[o]fficers with the City of

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Avondale seized Plaintiffs Gregory Martinez, Sr., Marisol Martinez, I.M., M.M., and

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L.M. . . . [and] refused to permit these Plaintiffs to be together or speak together; to leave

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the scene; or to attend to Gregory Martinez, Jr., in the hospital . . . [which] lasted for

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many hours.” (Doc. 19, ¶¶ 51-52 at 8) “This seizure was unreasonable and in violation of

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the Fourth Amendment and Due Process Clause of the Fourteenth Amendment to the

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United States Constitution.” (Id., ¶ 54 at 8)

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Defendants describe as “patently false” the representation that Plaintiffs “just

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recently discovered the identities of the officers who provided scene security and kept the

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witnesses from speaking to each other prior to being interviewed.” (Doc. 69 at 3)

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Defendants indicate that, in Plaintiffs’ October 19, 2012 Initial Disclosure Statement,

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doc. 16, Plaintiffs disclosed the Avondale police reports regarding this shooting, which

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Defendants surmise were obtained through a public records’ request and “[r]eflect a print

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date of January 19, 2012, which is, presumably, near the date of Plaintiffs[’] public

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The parties and the Court use the children’s initials in all public filings to protect
their privacy interests as directed by Rule 5.2(a), Fed.R.Civ.P.
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records request and receipt of the reports.” (Doc. 69 at 2) According to Defendants,

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before they filed their State-court complaint in August 2012, Plaintiffs possessed “several

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references to police officers interviewing and separating witnesses,” including: Officers

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Beckett, Sayles, Unger, Toxqui, and Clement. (Id. at 3) However, absent from this list of

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names are Officers Albert Bates and Raymond Harris.

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Citing on Federal Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir.

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1987) and State Distributors, Inc. v. Glenmore Distilleries, 738 F.2db 405, 416 (10th Cir.

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1987), Defendants contend that, because Plaintiffs knew or should have known of the

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facts on which the amendment request is based “for some time prior to the filing of the

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motion to amend,” leave to amend should be denied. (Id. at 4) Defendants argue

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“Plaintiffs should not be able to benefit by the delay created by their failure to properly

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plead their case in their original Complaint or even their First Amended Complaint.” (Id.)

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In response, Plaintiffs acknowledge they had “some indication” which Avondale

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police officers separated the various family members from the “heavily redacted police

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reports” before commencing this litigation. (Doc. 72 at 2) Plaintiffs indicate, however,

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“these raised more questions than answers,” such as, who ordered the “sequestration and

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detentions,” how long did the detentions last, and under what conditions? (Id.) Plaintiffs

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describe this less-than-perfect information as “informational disadvantage,”citing

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Colburn v. Upper Darby Township, 838 F.2d 663, 667 (3d Cir. 1988). (Id., n. 1)

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Conceding “marginal delay” may result if new defendants are added,” id. at 2, Plaintiffs

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point out that, while Plaintiffs have conducted six depositions to date, Defendants had

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taken only one deposition, I.M., by mid-March 2013, and have scheduled five depositions

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of Plaintiffs and their witnesses in April, suggesting Defendants will not be prejudiced by

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amendment as most defense depositions have not been completed. (Docs. 69 at 5; 72 at 3)

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Plaintiffs also note discovery does not close for another four months; Defendants have

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been on notice of the wrongful seizure issue since it was first formally raised in the

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October 30, 2012 First Amended Complaint, id. at 3; and, importantly, the amendment

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request is timely and consistent with the Court’s Scheduling Order, i.e., “[m]otions to

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amend pleadings and motions to join additional parties [must be filed] by Friday, March

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1, 2013.” (Doc. 17, ¶ 2 at 6) (footnote omitted).

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II. Amendment Motions

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As the Court noted in its October 23, 2012 Rule 16 Scheduling Order, motions to

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amend filed after the Scheduling Order’s deadline are governed, not by the liberal

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provisions of Fed.R.Civ.P. 15(a), but instead by the more restrictive provisions of Rule

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16(b) and the good-cause standard. (Doc. 17 at 6 fn. 4) Because Plaintiffs timely filed

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their amendment motion on March 1, 2013, the last possible day to do so under the

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Scheduling Order, the liberal provisions of Rule 15(a) apply to their motion. See Schultz

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v. Wal-Mart Stores, Inc., 68 Fed. Appx. 130, 132 (9th Cir. 2003); Coleman v. Quaker

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Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000); Johnson v. Mammoth Recreations, Inc.,

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975 F.2d 604, 610 (9th Cir. 1992).

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Federal Rule of Civil Procedure 15(a) instructs district courts that “leave [to

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amend] shall be freely given when justice so requires.” “In the absence of any apparent or

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declared reason - such as undue delay, bad faith or dilatory motive on the part of the

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movant, repeated failure to cure deficiencies by amendments previously allowed, undue

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prejudice to the opposing party by virtue of allowance of the amendment, futility of

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amendment, etc. - the leave sought should, as the rules require, be freely given.” Schultz,

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68 Fed. Appx. at 132 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962) (internal

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quotation marks omitted). “The Federal Rules reject the approach that pleading is a game

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of skill in which one misstep by counsel may be decisive to the outcome and accept the

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principle that the purpose of pleading is to facilitate a proper decision on the merits.” Id.

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(citation and internal quotation marks omitted). “The strong policy permitting amendment

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is to be applied with ‘extreme liberality.’” Id. (quoting Eminence Capital, L.L.C. v.

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Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citation omitted in original).

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The Ninth Circuit strongly endorses a liberal approach to allowing amendments.

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Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“[W]e have repeatedly stressed that

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the [district] court must remain guided by the underlying purpose of Rule 15 . . . to
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facilitate decision on the merits, rather than on the pleadings or technicalities.”) (citing

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Rule 15(a)(2) and quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (internal

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quotation marks omitted), partially superceded by statute. Leave to amend, however, is

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not granted automatically. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir.

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1990); see also Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)

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(no abuse of discretion denying motion to amend complaint to allege additional causes of

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action that would have required further discovery, which was to close five days after the

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motion to amend was filed.) (citing Solomon v. North Am. Life & Cas. Ins. Co., 151 F.3d

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1132, 1139 (9th Cir. 1998) (affirming the district court’s denial of motion to amend filed

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on the eve of the discovery deadline).

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District courts commonly consider the four Foman factors when determining

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whether to grant leave to amend: (1) bad faith on the part of the movant; (2) undue delay;

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(3) prejudice to the opposing party; and (4) futility of the proposed amendment. Lockheed

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Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999); Bowles v.

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Reade, 198 F.3d 752, 757 (9th Cir. 1999). These factors do not merit equal consideration.

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“Prejudice to the opposing party is the most important factor.” Jackson, 902 F.2d at 1387

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(citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 (1971)

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(district court “required” to take potential prejudice into account in deciding Rule 15(a)

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motion). “Absent prejudice, or a strong showing of any of the remaining Foman factors,

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there exists a presumption under Rule 15(a) in favor of granting leave to amend.”

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Eminence Capital, 316 F.3d at 1052 (citation omitted). “The party opposing leave to

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amend bears the burden of showing prejudice.” DCD Programs, Ltd v. Leighton, 833

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F.2d 183, 187 (9th Cir. 1987) (citation omitted).

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“A need to reopen discovery and therefore delay the proceedings supports a

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district court’s finding of prejudice from a delayed motion to amend.” Lockheed Martin

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Corp., 194 F.3d at 986; see also Johnson v. Couturier, 2009 WL 256546, at *3 (E.D. Cal.

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Feb. 3, 2009) (finding prejudice where a defendant’s late addition would make it

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“extremely difficult and inconvenient” for the defendant to catch up with discovery).

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The Ninth Circuit also instructs district courts that undue delay alone is insufficient

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to justify denying a motion to amend. See Bowles, 198 F.3d at 758 (“Undue delay by

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itself . . . is insufficient to justify denying a motion to amend.”); see also Owens v. Kaiser

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Found. Health Plan, Inc., 244 F.3d 708, 712-13 (9th Cir. 2001) (applying this rule from

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Bowles and affirming leave to amend); Roberts v. Arizona Bd. of Regents, 661 F.2d 796,

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798 (9th Cir. 1981) (“Ordinarily, leave to amend pleadings should be granted regardless

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of the length of time of delay by the moving party absent a showing of bad faith by the

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moving party or prejudice to the opposing party.”) (citations omitted). A moving party

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may be precluded from asserting an amendment on the basis of undue delay where the

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matters asserted in the amendment were known to them from the beginning of the suit.

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Komie v. Buehler Corp., 449 F.2d 644, 648 (9th Cir. 1971) (finding that where the

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moving party filed a motion to amend answer 31 months after the answer was filed, three

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weeks before the trial date, and the prejudice to the opposing party was evident, the trial

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court did not abuse its discretion in denying leave to amend); Mende v. Dun & Bradstreet,

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Inc., 670 F.2d 129, 131 (9th Cir. 1982) (affirming denial of motion for leave to amend

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complaint 25 months after the original complaint was filed).

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Amendment may also be denied on the basis of futility if the amended pleading

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itself would be subject to dismissal. Gentala v. City of Tucson, 213 F.3d 1055, 1061 (9th

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Cir. 2000) (“[F]utility of amendment can, by itself, justify the denial of a motion for leave

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to amend.”) (citation and internal quotation marks omitted). “[A] proposed amendment is

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futile only if no set of facts can be proved under the amendment to the pleadings that

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would constitute a valid and sufficient claim or defense.” Sweaney v. Ada County, 119

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F.3d 1385, 1393 (9th Cir. 1997) (citation and internal quotation marks omitted); see also

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Ortega Melendres v. Arpaio, 2008 WL 4174918, at *2-3 (D. Ariz. Sept. 5, 2008)

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(rejecting use of “[R]ule 15(a) as a vehicle for hearing arguments that are clearly more

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properly suited to a 12(b)(1), 12(b)(6) or Summary Judgment Motion.”)

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III. Discussion

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Because a “scheduling order controls the subsequent course of the action unless

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modified by the court[,]”) Johnson, 975 F.2d at 608 (citation omitted), Defendants offer

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no authority, and this Court has found none, that a timely motion to amend filed before

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expiration of the amendment deadline, which motion otherwise complies with a district

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court’s local rules, should result in a finding of untimeliness and be denied. See Barker v.

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Hertz Corp., 2007 WL 4410253, at *2 (D. Ariz. Dec. 13, 2007) (denying leave to amend

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where party failed to make motion to amend and attach proposed amended complaint),

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affirmed by 350 Fed. Appx. 176 (9th Cir. 2009).

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Assuming arguendo the truthfulness of Plaintiffs’ wrongful seizure claims and

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proposed allegations, as the Court must, there is clear Ninth Circuit authority that an

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unreasonable detention of a witness solely for investigative purposes or other person

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without a founded suspicion of criminal activity is unconstitutional. See, e.g., Maxwell v.

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County of San Diego,

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States v. Ward, 488 F.2d 162 (9th Cir. 1973) (en banc); Walker v. City of Orem, 451 F.3d

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1139, 1148 (10th Cir. 2006). At this pleading stage, Plaintiffs’ requested amendment is

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not futile and Defendants have not argued that it is.

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, 2013 WL 542756 (9th Cir. Feb. 14, 2013); United

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Defendants have not made a strong showing of bad faith and prejudice, much less

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carried their burden of doing so. DCD Programs, 833 F.2d at 187. While the parties have

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engaged in substantial discovery to date, Defendants have only taken one deposition prior

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to receiving notice of Plaintiffs’ amendment motion. Like the District Judge noted in a

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recent Arizona federal case granting leave to amend, “the new allegations Plaintiffs seek

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to add in their amended complaint are based on evidence Defendant had in its possession,

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and arise under the same facts as the previous allegations. Thus, the prejudicial effect on

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Defendants prior discovery of granting leave to amend is negligible.” Capuano v.

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Kenneth Eisen & Associates, Ltd., 2012 WL 2376675, at *5 (D. Ariz. June 22, 2012).

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Moreover, discovery in the case sub judice has not closed and all parties, including the

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newly-added defendants, have over four months to complete all discovery by the July 31,

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2013 discovery deadline, which is likely if the parties maintain their due diligence and

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efforts to do so. See Canal Properties, LLC v. Alliant Tax Credit V, Inc., 220 Fed. Appx.

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699, 700–01 (9th Cir. 2007) (district court did not abuse discretion by denying leave to

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amend where discovery had closed, the time for dispositive motions had passed, and was

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made just a few weeks before trial). Finally, no dispositive motions have been filed and

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there is no trial date set at this time.

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IV. Conclusion

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While “[a] litigant who ignores a case-management deadline does so at his peril[,]”

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Chao v. Westside Drywall, Inc., 254 F.R.D. 651 (D. Or. Jan. 6, 2009) (citation omitted), a

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litigant who timely complies with a case-management deadline to amend pleadings, even

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when such motion is filed on the last authorized day to do so and is otherwise compliant

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with a district court’s local rules, the Ninth Circuit instructs the motion should be

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granted. The Court finds Defendants have not demonstrated prejudice, bad faith, or any

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other permissible ground to overcome the presumption that Plaintiffs’ amendment

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request should be allowed.

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Based on the foregoing,

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IT IS ORDERED that Plaintiff’s Motion to Amend Complaint, doc. 63, is

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GRANTED. Pursuant to LRCiv 15.1, as amended on December 1, 2012, Plaintiffs must

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1) remove all fictitious defendants named as John and Jane Does I-X and Black Entities

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I-V in the caption and body of the Second Amended Complaint; 2) remove all bolding in

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the caption of the Second Amended Complaint as such bolding is not authorized by the

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Local Rules; and 3) file the Second Amended Complaint, lodged at doc. 63-1 as modified

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by this Order, on all parties under Rule 5 of the Federal Rules of Civil Procedure within

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seven (7) days of the filing of this Order and promptly serve all Defendants. See LRCiv

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15.1. The Court encourages defense counsel and each newly-named defendant to consider

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voluntarily waiving service of the Second Amended Complaint pursuant to Rule 4(d),

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Fed.R.Civ.P., to avoid unnecessary expenses and delay of serving the summons and

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Second Amended Complaint. Rule 4(d)(1), Fed.R.Civ.P.

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Dated this 22nd day of March, 2013.

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