Gonzalez v. Glendale, City of et al

Filing 24

ORDER: IT IS ORDERED that 1. Defendants' motion to dismiss (Doc. 24 ) is DENIED; and 2. Plaintiff's "Complaint (Amended) For A Civil Case" (Doc. 19 ) is deemed Plaintiff's Second Amended Complaint [see attached Order for details]. Signed by Judge Dominic W Lanza on 11/30/18. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Maria Orozco Gonzalez,
Plaintiff,

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ORDER

v.

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No. CV-17-04593-PHX-DWL

City of Glendale, et al.,

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Defendants.

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Pending before the Court is Defendants’ motion to dismiss under Rule 41(b). (Doc.

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17.) As explained below, the motion will be denied. Additionally, the Court will construe

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Plaintiff’s recent filings as a request under Rule 15(a)(2) to file a second amended

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complaint, will grant that request, and will order Doc. 19 to be treated as her second

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amended complaint.

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BACKGROUND

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On December 12, 2017, Plaintiff Maria Orozco Gonzalez filed a pro se complaint.

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(Doc. 1.) The complaint was difficult to follow. For example, although the complaint

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asserted that Plaintiff had suffered “harassment due to my Disabilities and my Gender,” it

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did not specifically identify or assert any causes of action. (Doc. 1 at 1-2.) Similarly,

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although the complaint identified, by name, several different employees of the City of

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Glendale and seemed to be accusing each of them of wrongdoing, the introductory

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paragraph of the complaint identified only a single party as a defendant: “The defendant,

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City of Glendale C/O Nancy Mangone.” (Doc. 1 at 1.)

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On December 12, 2017, soon after the complaint was filed, the Court provided

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Plaintiff with a document entitled “Notice to Self-Represented Litigant.” (Doc. 4.) Among

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other things, this document identified various manuals and resources that were available to

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Plaintiff.

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On April 3, 2018, the City of Glendale and Nancy Mangone (collectively,

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“Defendants”) filed a motion for a more definite statement. (Doc. 11.) This motion argued

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the complaint was “ambiguous as to who is suing, under what theories of liability, why

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Plaintiff sues Nancy Mangone, and if Plaintiff is suing the City of Glendale.” (Doc. 11 at

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2.)

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On June 29, 2018, the Court issued an order granting the motion for a more definite

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statement. (Doc. 15.) The order concluded that additional clarification was needed

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because (1) “Plaintiff names both the City of Glendale and Nancy Mangone as Defendants,

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but her allegations fail to make clear precisely why the alleged acts in the Complaint give

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rise to liability for either the City or Mangone”; (2) “although the Complaint contains

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allegations about Plaintiff’s husband’s own disabilities, it is unclear whether Plaintiff

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purports to bring suit on behalf of her husband as well” and (3) “Plaintiff fails to allege the

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precise cause of action which would give rise to Defendants’ liability.” (Doc. 15 at 2.)

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Thus, the order required Plaintiff to file an amended complaint and specified that the

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“Amended Complaint shall set out in separately numbered paragraphs the factual basis for

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each claim that Plaintiff alleges and the precise legal theory supporting that claim. The

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Amended Complaint shall also make clear who Plaintiff is suing—and in what capacity—

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and how Plaintiff’s allegations give rise to liability for each Defendant named in the

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Amended Complaint.” (Doc. 15 at 3.)

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On July 19, 2018, Plaintiff filed a first amended complaint (“FAC”). (Doc. 16.)

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The FAC did not comply with the Court’s previous order. Among other things, (1) the

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caption of the FAC suggested Plaintiff was suing more than one defendant but did not

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identify each defendant with precision (“City of Glendale, et al., Defendants”); (2) the FAC

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did not contain separately-numbered paragraphs, which the Court had expressly required

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in its previous order; and (3) although the FAC broadly alluded to several different statutes

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and types of misconduct (the FMLA, the “American with Disability ACT,” and

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harassment), it did not attempt to funnel these allusions into discrete causes of action.

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On August 3, 2018, Defendants filed a motion to dismiss under Rule 41(b). (Doc.

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17.) In it, Defendants argued that (1) the FAC remains deficient under Rules 8 and 10—

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and, in fact, “is more deficient than her original Complaint”—because it fails to identify

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the parties, damages, and causes of action with any precision; (2) because the FAC was

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submitted after the Court ordered Plaintiff to supply a more definite statement, its

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submission should be deemed a violation of a court order; and (3) under Rule 41(b), the

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Court may dismiss a complaint for failure to comply with court orders. (Doc. 17 at 2-7.)

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On August 7, 2018, the Court issued an order requiring Plaintiff to “file with the

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Clerk of the Court and serve on opposing counsel a responsive memorandum to [the motion

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to dismiss] no later than August 24, 2018.” (Doc. 18.)

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On August 24, 2018, Plaintiff filed a document entitled “Complaint (Amended) For

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A Civil Case.”

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memorandum (as required by the Court’s August 7, 2018 order). On the other hand, this

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pleading finally supplied the details that were missing in Plaintiff’s original complaint and

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Plaintiff’s FAC. It identified two defendants with precision (City of Glendale and Carl

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Westbrooks), asserted that “[t]he basis for federal court jurisdiction is Federal question,”

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identified three causes of action with prevision (first, “Violation of the FMLA Act”;

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second, “Violation of the Americans with Disabilities Act of 1990”; and third, “Gender

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Discrimination, Title VII of the Civil Rights Act of 1964”), used numbered paragraphs to

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supply the factual allegations supporting each cause of action, and concluded with a

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detailed claim for relief. (Doc. 19 at 1-9.)

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(Doc. 19.)

On the one hand, this pleading was not a responsive

On August 24, 2018, Plaintiff also filed a separate document entitled “Answer to
Order.” (Doc. 20.) The purpose of this document isn’t clear.

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On August 31, 2018, Defendants filed a reply in support of the motion to dismiss.

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(Doc. 21.) In it, Defendants argued that (1) Plaintiff’s two submissions on August 24 were

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inadequate because neither constituted a “responsive memorandum” to the motion to

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dismiss; and (2) Plaintiff’s attempt to submit a new complaint also violated Rule 15(a)(2)

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because she didn’t “first seek[] leave of the Court or consent of opposing counsel.” (Doc.

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21 at 2.)

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On September 13, 2018, Plaintiff submitted a document entitled “Response to Rule

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41 Motion to Dismiss.” (Doc. 22.) This pleading includes the following passage: “I have

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filed an Amended Complaint. I followed the sample provided in the form on the United

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States Federal Court’s website. I listed, in my Statement of Claim, my facts regarding each

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of the counts. As per the information, I followed the instructions and I did not make legal

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arguments.” (Doc. 22 at 2.)

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ANALYSIS
A.

Motion to Dismiss

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Defendants have moved to dismiss under Rule 41(b) of the Federal Rules of Civil

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Procedure. Although the Court shares Defendants’ frustration with Plaintiff’s litigation

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conduct to date, the Court will decline to order dismissal.

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As background, Rule 41(b) allows the Court to dismiss an action for failure “to

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comply with . . . a court order.” Before dismissal on this ground, the Court must weigh

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“(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic alternatives.”

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992).

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The first Rule 41(b) factor—the public’s interest in expeditious resolution of

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litigation—“always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th

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Cir. 1999).

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As to the second factor, the Ninth Circuit has recognized that district courts have

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inherent power to manage their dockets without being subject to noncompliant litigants.

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Ferdik, 963 F.2d at 1261. Where “dilatory conduct greatly impede[s] resolution of the case

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and prevent[s] the district court from adhering to its trial schedule,” this factor favors

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dismissal. Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987). Here, although

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Plaintiff has arguably violated the Court’s orders on two different occasions—first, by

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filing a deficient FAC in response to the Court’s June 29, 2018 order; and second, by failing

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to timely file a responsive memorandum to Defendants’ motion to dismiss, as required by

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the Court’s August 7, 2018 order—the Court cannot say these failures have greatly

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impeded the resolution of this case. It is notable that Defendants haven’t challenged, on

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the merits, the sufficiency of the new complaint that Plaintiff attempted to file on August

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24, 2018. Had Plaintiff simply filed this document on July 19, 2018—instead of filing the

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admittedly deficient FAC—this whole matter would have been resolved. The one-month

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delay has not “consumed large amounts of the court’s valuable time that it could have

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devoted to other major and serious criminal and civil cases on its docket.” Ferdik, 963

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F.2d at 1261. Consequently, the second factor does not favor dismissal.

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The third factor considers prejudice to the defendant.

“A defendant suffers

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prejudice if the plaintiff’s actions impair the defendant’s ability to go to trial or threaten to

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interfere with the rightful decision of the case.” Adriana Int’l Corp. v. Thoeren, 913 F.2d

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1406, 1412 & n.4 (9th Cir. 1990). Here, Defendants do not suggest the delay in this action

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will impair their ability to make their case. Furthermore, their main theory of prejudice—

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that Plaintiff’s earlier filings deprived them of their “right to know what, if any,

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wrongdoing Plaintiff alleges against each of them and what relief she seeks from them”—

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was cured by the August 24 filing. Accordingly, this factor weighs against dismissal.

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Public policy favors disposition of cases on the merits, so the fourth factor weighs
against dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002).

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The final factor requires the Court to consider the impact of dismissal and whether

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a less drastic alternative is available. Malone, 833 F.2d at 131-32. Here, although Plaintiff

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was warned that failing to comply with court orders could result in dismissal (see Doc. 18),

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it’s possible to chalk up her recent procedural missteps to negligence rather than something

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more extreme. Specifically, it appears she diligently tried to address Defendants’ concerns

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about the inadequacy of the FAC by supplying a new version of the complaint that was far

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more structured and definitive than the two previous iterations. Admittedly, she didn’t

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follow the correct procedural steps when doing so—she should have filed a memorandum

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that addressed Defendants’ Rule 41(b) arguments on the merits and, separately, sought

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leave or consent under Rule 15(a)(2) before filing the new version of the complaint—but

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such missteps by a pro se litigant do not rise to the level of extreme circumstances.

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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). (“Dismissal is a harsh penalty

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and is to be imposed only in extreme circumstances.”).

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In sum, the five-factor analysis does not support dismissal under Rule 41(b).
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Motion For Leave To Amend

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As Defendants correctly point out in their motion, Plaintiff’s effort to file a new

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version of her complaint on August 24, 2018 (see Doc. 19) was procedurally improper.

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Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “a party may amend its

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pleading only with the opposing party’s written consent or the court’s leave.” Id. That

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said, “[t]he court should freely give consent when justice so requires.” Id.

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Here, the Court finds that “justice so requires” it to construe Plaintiff’s recent filings

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as a request under Rule 15(a)(2) to file a second amended complaint, to grant that request,

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and to order Doc. 19 to be treated as Plaintiff’s second amended complaint. Edwards v.

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Occidental Chemical Corp., 892 F.2d 1442, 1445 n.2 (9th Cir. 1990) (plaintiff’s failure to

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call her request a “motion for leave to amend” or to tender a formal amendment did not

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preclude district court from granting leave to amend).

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Plaintiff is further advised that service of the summons and complaint on defendant

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Carl Westbrooks (who was not named as a defendant in the original complaint or the FAC

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and who, according to the docket, has not been served or made an appearance) must occur

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within 90 days of today’s date. See Fed. R. Civ. P. 4(m). Proof of service must be filed

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with the Clerk of Court, in the form of an affidavit, promptly after service has been made.

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See Fed. R. Civ. P. 4(l). This order serves as an express warning that the Court will dismiss

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this action with respect to defendant Carl Westbrooks, without further notice to Plaintiff,

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if he is not timely served. See Fed. R. Civ. P. 4(m).

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Accordingly,

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IT IS ORDERED that

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1.

Defendants’ motion to dismiss (Doc. 24) is DENIED; and

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Plaintiff’s “Complaint (Amended) For A Civil Case” (Doc. 19) is deemed Plaintiff’s

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Second Amended Complaint.

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Dated this 30th day of November, 2018.

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