Dillman v. Mesa, City of et al

Filing 24

ORDER denying 17 Motion to Amend/Correct. Signed by Judge David G Campbell on 7/10/2014.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Dillman,

No. CV-13-02161-PHX-DGC
Plaintiff,

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v.

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ORDER

Mesa, City of, et al.,

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Defendants.

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Plaintiff has filed a motion for leave to amend his complaint pursuant to add

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Officer Donald Williams and Jane Doe Williams, husband and wife, as Defendants. Doc.

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17. The motion has been fully briefed, and no party has requested oral argument. Docs.

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18, 19. For the reasons stated below, the motion will be denied.

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I.

Background.

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Plaintiff brought suit against the City of Mesa for allegations arising out of a

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traffic stop on November 26, 2012. Doc. 1, ¶ 7. Plaintiff alleges that Mesa Police

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Officer McClellan forcibly pulled him out of his car, slammed him against the car,

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applied handcuffs that were too tight, and pushed him into the passenger seat, injuring his

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handcuffed wrists. Id., ¶ 8. While deposing Officer McClellan, Plaintiff learned that it

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was actually Officer Williams who stopped him, applied the handcuffs, and threw him

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into the back seat of the car, allegedly at the direction of Officer McClellan.

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II.

Legal Standard.

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While the decision to grant or deny a motion to amend is within the discretion of

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the district court, “Rule 15(a) declares that leave to amend ‘shall be freely given when

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justice so requires’; this mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182

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(1962).

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limitations. Motions to amend should be granted unless the district court determines that

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there has been a showing of: (1) undue delay; (2) bad faith or dilatory motives on the part

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of the movant; (3) repeated failure to cure deficiencies by previous amendments;

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(4) undue prejudice to the opposing party; or (5) futility of the proposed amendment. Id.

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at 182.

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II.

The liberal policy in favor of amendments, however, is subject to some

Analysis.

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Defendants urge the Court to deny the motion to amend because allowing Plaintiff

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to add Officer Williams would violate Arizona’s notice of claim statute, which requires

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that a plaintiff give notice of a claim against a public employee within 180 days of the

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date of accrual. Doc. 18 at 2 (citing A.R.S. § 12-821.01). Defendants argue that

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Plaintiffs’ claims accrued on November 26, 2012, the date of the traffic stop. Doc. 18 at

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3. Defendants also contend that Plaintiff knew there were two officers involved in the

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stop, but chose to name only one, and that Plaintiff failed to inquire about the names of

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both officers. Id. at 4-5. Defendants argue that the proposed amendment would be futile

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because any claim against Officer Williams is barred by failure to give notice.

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Plaintiff argues that he contacted the City of Mesa to inquire about the name of the

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arresting officer and was given Officer McClellan’s name, but not Officer Williams’

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name. Doc. 19 at 1. He argues that he was led to believe that he had appropriately

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named the officer who caused his injuries.

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Arizona’s notice of claim statute requires that notice be provided to public

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employees within 180 days after a cause of action accrues. A.R.S. § 12-821.01(A). A

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cause of action accrues “when the damaged parties realized he or she has been damaged

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and knows or reasonably should know the cause, source, act, event, instrumentality or

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condition that caused or contributed to the damage.” A.R.S. § 12-821.01(B). This

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knowledge includes the identity of the defendants, as courts have held that “knowledge of

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the identity of the defendant is a critical element in determining when a cause of action

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accrues.” Lawhon v. L.B.J. Inst. Supply, Inc., 765 P.2d 1003, 1005 (Ariz. Ct. App. 1988).

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Plaintiff does not argue, however, that his claim did not accrue until he learned the

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identity of Officer Williams. For this and other reasons, it is not clear when the claim

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against Officer Williams accrued.

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But even if the cause of action did not accrue until Plaintiff discovered the identity

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of Officer Williams during a deposition, that discovery would merely shift the date of

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accrual of the cause of action. It would not excuse Plaintiff from complying with the

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notice of claim statute, which is mandatory under Arizona law. Travis Scott v. Wenden

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Domestic Water Imp. Dist., CV13-01667-PHX-DGC, 2013 WL 5670920, *1 (D. Ariz.

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Oct. 17, 2013) (citing Salerno v. Espinoza, 115 P.3d 626, 628 (Ariz. Ct. App. 2005);

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Deer Valley Unified Sch. Dist. No. 97 v. Houser, 152 P.3d 490 (Ariz. 2007)).

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Plaintiff has submitted no evidence that he has complied with the notice of claim

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statute for Officer Williams. Because Plaintiff cannot assert a claim against Officer

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Williams without complying with the statute, his amendment would be futile.

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IT IS ORDERED that Plaintiff’s motion to amend (Doc. 17) is denied.

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Dated this 10th day of July, 2014.

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