Garcia v. Salvation Army

Filing 93

ORDER: The motions to amend (Doc. 73 , 76 ) are denied. Further amendments will not be permitted. This case shall proceed on the basis of existing pleadings and the schedule set forth in Case Management Order #2 (Doc. 72 ). Defendant's motion to strike (Doc. 81 ) is denied as unnecessary and therefore moot. Signed by Judge David G Campbell on 2/02/2016. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ann Garcia,

No. CV-14-02225-PHX-DGC
Plaintiff,

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v.

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ORDER

Salvation Army,
Defendant.

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This case consists of two consolidated actions. Case CV14-2225 was filed by

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Plaintiff Ann Garcia on October 7, 2014, and alleged discrimination and other wrongs in

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the termination of Plaintiff’s employment. Plaintiff filed an amended complaint on

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January 6, 2015.

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March 20, 2015, which afforded 60 days to amend pleadings. Doc. 29. Plaintiff filed a

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second amended complaint on May 18, 2015. Doc. 31. Plaintiff filed a motion to amend

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her complaint on August 18, 2015 – well after the Court’s deadline – which the Court

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denied. Docs. 46, 61, 62. The Court found that Plaintiff had not shown “good cause” to

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extend the deadline as required by Rule 16(b)(4).

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Doc. 19.

The Court entered a case management schedule on

The second cause of action, case CV15-0144, was filed before Judge Logan on

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July 28, 2015.

It too concerned Plaintiff’s termination, but asserted different legal

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claims. Plaintiff filed an amended complaint in that case on August 13, 2015. On

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September 25, 2015, the Court transferred case CV15-01444 to this Court and

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consolidated it with case CV14-2225.

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Following consolidation, the Court held another case management conference to

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address the schedule in both cases. The Court noted during the conference that Plaintiff

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had multiple opportunities to amend her claims (three complaints in case CV14-2225 and

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two complaints in case CV15-1444) and that the Court would not permit further

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amendments. Plaintiff explained that she wished to add her husband as a plaintiff. The

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Court stated during the case management conference that it would allow an amendment

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to add Plaintiff’s husband, but that the time for other amendments had passed. The Court

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reflected this conclusion in Case Management Order #2. Doc. 72, ¶ 2.

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On December 2, 2015, Plaintiff’s husband filed a pleading seeking leave to

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amend. Doc. 73. The next day, a similar pleading was filed, but apparently signed by

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Plaintiff. Doc. 76. Defendant moved to strike the motions to amend. Doc. 81. Plaintiff

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did not respond. Defendant filed a reply on January 26, 2016. Doc. 89. For several

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reasons, the Court will deny the motions to amend.

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1.

The motion filed by Plaintiff’s husband (Doc. 73) is denied because Mr.

Garcia is not a party to this litigation and cannot file such a motion.
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Both motions are denied because they seek to do more than add Mr. Garcia

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as a plaintiff. As Defendant notes, they include additional allegations, including an

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apparent attempt to re-assert a failure to accommodate claim that was dropped from

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Plaintiff’s pleadings in case CV15-1444. The Court granted leave to add Plaintiff’s

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husband to this case, not to add new claims or allegations. The time for doing so has

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passed. Plaintiff has had ample opportunity to amend her claims in the five previous

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pleadings filed in these two consolidated cases.

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3.

The motions to do not comply with Local Rule of Civil Procedure 15.1(a).

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This omission is critical, because it is very difficult to determine precisely what is being

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added by the proposed amendment.

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4.

Mr. Garcia states that he does not seek any relief other than an apology. An

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apology, however, is not a form of relief the Court may grant. Thus, it appears that Mr.

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Garcia is not seeking relief within the jurisdiction of this Court.
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5.

Mr. Garcia seeks to join a claim for intentional infliction of emotional

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distress. To recover on such a claim in Arizona, a plaintiff must prove that (1) the

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defendant’s conduct was extreme and outrageous, (2) the defendant either intended to

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cause emotional distress or recklessly disregarded the near certainty that distress would

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result from the conduct, (3) the conduct caused the plaintiff to suffer emotional distress,

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and (4) the emotional distress was severe. See Lucchesi v. Stimmell, 716 P.2d 1013,

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1015-16 (Ariz. 1986); Ford v. Revlon, Inc., 734 P.2d 580, 585 (Ariz. 1987). A plaintiff

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“may recover for intentional infliction of emotional distress only where the defendant’s

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acts are ‘so outrageous in character and so extreme in degree, as to go beyond all possible

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bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

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community.’” Patton v. First Fed. Sav. & Loan Ass’n of Phx., 578 P.2d 152, 155 (Ariz.

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1978) (quoting Cluff v. Farmers Ins. Exch., 460 P.2d 666, 668 (Ariz. 1969)).

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Mr. Garcia alleges that he attempted to communicate with Defendant regarding the

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stress his wife was experiencing at work. He alleges that Defendant promised him

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repeatedly that the matter would be resolved. When matters were not resolved and his

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wife ultimately was terminated, he suffered extreme emotional distress.

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allegations do not set forth the kind of extreme and outrageous conduct required under

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Arizona law for intentional infliction of emotional distress. Mr. Garcia does not allege

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conduct by Defendant that goes beyond all possible bounds of decency so as to be

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regarded as atrocious and utterly intolerable in a civilized community. Thus, the Court

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concludes that Mr. Garcia’s proposed amendment would be futile.

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Plaintiff has not responded to Defendant’s motion to strike or opposition to

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the proposed amendment. Under Local Rule 7.2(i), the Court may view this as consent to

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the positions taken by Defendant.

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IT IS ORDERED:

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1.

The motions to amend (Doc. 73, 76) are denied. Further amendments will

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not be permitted. This case shall proceed on the basis of existing pleadings and the

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schedule set forth in Case Management Order #2 (Doc. 72).
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2.

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therefore moot.

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Defendant’s motion to strike (Doc. 81) is denied as unnecessary and

Dated this 2nd day of February, 2016.

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