Bender v. Gila County Sheriff's Office

Filing 12

ORDER - that Defendant's 4 Motion to Dismiss is denied as moot without prejudice. FURTHER ORDERED that Plaintiff's 9 Motion to Amend and File a Second Amended Complaint is granted. Plaintiff shall file the proposed Second Amended Co mplaint in accordance with this Order within 10 days of the filing of this Order; if plaintiff fails to file a second amended complaint within this deadline, defendant may re-file the Motion to Dismiss that the Court has denied without prejudice within 15 days of the date of this Order. Signed by Senior Judge James A Teilborg on 8/27/2013.(TLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Darcia C. Bender,
No. 12-CV-02536-PHX-JAT

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Plaintiff,

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v.

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Gila County Sheriff’s Office, a
Governmental entity,

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ORDER

Defendant.

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Pending before the Court is Defendant, Gila County Sheriff’s Office’s, Motion to

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Dismiss Plaintiff’s complaint. (Doc. 4). Plaintiff has filed a response to Defendant’s

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Motion to Dismiss and informed that Court that she would be filing a Motion to Amend

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her Complaint. (Doc. 8). Subsequently, Plaintiff filed a Motion to Amend her First

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Amended Complaint. (Doc. 9). Defendant has filed a response opposing Plaintiff’s

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Motion to Amend. (Doc. 10). The Court will deny Defendant’s Motion to Dismiss and

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grant Plaintiff’s Motion to Amend for the following reasons.

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I.

BACKGROUND

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On October 29, 2012, acting as a pro se litigant, Plaintiff filed a complaint against

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Defendant in the state Superior Court in Gila County. (Doc. 1-1). Plaintiff alleged two

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claims under Title VII against Defendant. (Id. at 5-6). On November 5, 2012, Plaintiff

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filed a First Amended Complaint (“FAC”) against Defendant alleging the same two claims

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under Title VII. (Doc. 1-2). On November 29, 2012, Defendant removed this action to

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federal court. (Doc. 1).

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On December 3, 2012, Defendant filed the pending Motion to Dismiss. (Doc. 4).

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In the Motion to Dismiss, Defendant argues that the Court should dismiss the FAC

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because the Gila County Sheriff’s Office is a non-jural entity and, as such, is without the

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capacity to sue or be sued. (Id. at 1).

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On February 15, 2013, Plaintiff filed notice with the Court that she had retained

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counsel in this matter. (Doc. 7). On March 8, 2013, Plaintiff filed a response and

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informed the Court she would be filing a Motion to Amend her FAC. (Doc. 8). On

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March 14, 2013, Plaintiff filed the pending Motion to Amend the FAC (Doc. 9) and

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attached a proposed Second Amended Complaint (“SAC”) (Doc. 9-1). In the SAC,

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Plaintiff appears to concede that Gila County Sheriff’s Office is a non-jural entity; she

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retains her two claims under Title VII and seeks to add Gila County, former Gila County

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Sheriff John Armer, and current Gila County Sheriff J. Adam Shepherd as Defendants.

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(Doc. 9-1).

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II.

ANALYSIS

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After a party has amended a pleading once as a matter of course, it may only

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amend further after obtaining leave of the court, or by consent of the adverse party. Fed.

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R. Civ. P. 15(a). Generally, Rule 15 advises the court that “leave shall be freely given

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when justice so requires.” This policy is “to be applied with extreme liberality.” Owens

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v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)(quoting Morongo

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Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). The Court has

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“an obligation where the petitioner is pro se, particularly in civil rights cases, to construe

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the pleadings liberally and to afford the petitioner the benefit of any doubt.” Akhtar v.

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Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027

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n. 1 (9th Cir. 1985) (en banc)). “A district court should not dismiss a pro se complaint

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without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint

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could not be cured by amendment.’” Id. (quoting Schucker v. Rockwood, 846 F.2d 1202,

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1203–04 (9th Cir. 1988) (per curiam)). A district court’s denial of leave to amend is

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subject to an abuse of discretion standard of review. See Telesaursus VPC, LLC v. Power,
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623 F.3d 998, 1003 (9th Cir. 2010).

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Under Ninth Circuit Court of Appeals precedent prior to the 2010 amendments to

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the Federal Rules of Civil Procedure, this Court would sua sponte grant leave to amend

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when granting a motion to dismiss under Rule 12(b)(6), unless a pleading could not be

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cured by the allegation of other facts. See Lacey v. Maricopa Cnty., 693 F.3d 896, 927

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(9th Cir. 2012) (en banc) (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).

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However, this precedent has been called into question in light of the 2010 changes to the

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Federal Rule of Civil Procedure 15, which now allows parties twenty-one days from

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responsive pleadings and motions to dismiss to amend once as a matter of course. See id.

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The United States Supreme Court has established that motions to amend should be

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granted unless the district court determines that there has been a showing of: (1) undue

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delay; (2) bad faith or dilatory motives on the part of the movant; (3) repeated failure to

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cure deficiencies by previous amendments; (4) undue prejudice to the opposing party; or

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(5) futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); see

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W. Shoshone Nat’l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991). “Generally, this

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determination should be performed with all inferences in favor of granting the motion.”

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Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999) (citing DCD

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Programs, LTD. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987)). Significantly, “[t]he

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party opposing amendment bears the burden of showing prejudice,” futility, or one of the

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other permissible reasons for denying a motion to amend. DCD Programs, 833 F.2d at

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187; see Richardson v. United States, 841 F.2d 993, 999 (9th Cir. 1988) (stating that leave

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to amend should be freely given unless opposing party makes “an affirmative showing of

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either prejudice or bad faith”).

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In this case, Plaintiff’s counsel opposes Defendant’s Motion to Dismiss under

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“Federal Rule of Civil Procedure 15(c)(3).” (Doc. 8 at 1). As an initial matter, the Court

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notes that Rule 15(c)(3) does not exist. The Court assumes Plaintiff intended to make her

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argument under Rule 15(c)(1) as she argues her proposed amendment relates back to the

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date she made her original claims. (Id. at 1-2). Plaintiff argues this rule permits her to
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add Gila County as a defendant under these circumstances. In her proposed SAC, Plaintiff

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seeks to add Gila County, former Gila County Sheriff John Armer, and current Gila

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County Sheriff J. Adam Shepherd as Defendants and dismiss the conceded non-jural

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entity Gila County Sheriff’s Office. (Doc. 9-1).

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In opposing Plaintiff’s Motion to Amend, Defendant argues that granting Plaintiff

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leave to amend would be futile because the Ninth Circuit has long held that Title VII does

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not provide a separate cause of action against supervisors or co-workers. (Doc. 10 at 2)

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(citing Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir. 2007)). Defendant

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goes on to ask the Court to deny the Motion to Amend and treat it as a motion to substitute

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a jural entity for a non-jural entity, namely, Gila County in place of the Gila County

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Sheriff’s Office. (Id.).

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Indeed, “[i]ndividual defendants are not proper defendants under a Title VII

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claim.” Cohen v. Clark Cnty. Sch. Dist., 11-CV-1619-MLH-RJJ, 2012 WL 2326721, at

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*7 (D. Nev. June 19, 2012) (citing Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1179

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(9th Cir. 2003) (“We have consistently held that Title VII does not provide a cause of

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action for damages against supervisors or fellow employees.”); see also Miller v.

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Maxwell’s Int’l Inc., 991 F.2d 583, 587-88 (9th Cir. 1993) (“[I]ndividual defendants

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cannot be held liable for damages under Title VII.”).

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Defendant has shown that it would be futile to allow Plaintiff to amend her complaint and

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add former Gila County Sheriff John Armer, and current Gila County Sheriff J. Adam

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Shepherd as Defendants.

Accordingly, the Court finds

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However, no showing has been made that allowing Plaintiff to amend would cause

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undue delay, that Plaintiff is acting in bad faith, or that Plaintiff has repeatedly failed to

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cure deficiencies by previous amendments. The Court also notes that no undue prejudice

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would be placed on Defendant by allowing Plaintiff to amend because the first two

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complaints were filed pro se and the FAC was filed before any meaningful defense was

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raised to the original complaint; counsel was also retained by Plaintiff after Plaintiff filed

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the FAC which forfeited Plaintiff’s counsel’s opportunity to file an amended complaint as
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a matter of course under Federal Rule of Civil Procedure 15. Further, the Ninth Circuit

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Court of Appeals has directed the Court to grant pro se litigants leave to amend with

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extreme liberality, especially in civil rights claims. Eldridge v. Block, 832 F.2d 1132,

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1135 (9th Cir. 1987). Finally, Defendant has made no argument that adding only Gila

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County as a Defendant would be futile or one of the other permissible reasons for denying

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a motion to amend. Consequently, the Court will grant Plaintiff’s Motion to Amend and

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upon filing her SAC, Plaintiff shall only add Gila County as a Defendant in this matter.

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III.

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CONCLUSION
Based on the foregoing,
IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 4) is denied as moot

without prejudice.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend and File a

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Second Amended Complaint (Doc. 9) is granted. Plaintiff shall file the proposed Second

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Amended Complaint in accordance with this Order within ten (10) days of the filing of

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this order; if Plaintiff fails to file a second amended complaint within this deadline, then

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Defendant may re-file the Motion to Dismiss that the Court has denied without prejudice

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within fifteen (15) days of the date of this order.

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Dated this 27th day of August, 2013.

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