Mitchell et al v. Flagstaff, City of et al

Filing 35

ORDER granting Plaintiffs' 27 Motion to Amend; Plaintiffs shall comply with the filing and service reqeuirements of LRCiv 15.1. Signed by Judge Frederick J Martone on 3/22/12.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ruth Bradburn Mitchell, individually and)
as personal representative of the Estate of)
Kenneth Mitchell; Kenneth Christopher)
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Mitchell,
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Plaintiffs,
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vs.
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City of Flagstaff; Roy Taylor; Jane Doe)
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Taylor,
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Defendants.
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CV 11-08140-PCT-FJM
ORDER

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The court has before it plaintiffs' motion to amend the complaint (doc. 27), defendants'
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response (doc. 28), and plaintiffs' reply (doc. 31). This action arises from an incident where
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defendant Officer Taylor shot and killed plaintiffs' relative Kenneth Mitchell. On November
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18, 2011, we denied defendants' motion to dismiss the state law claims (doc. 20). Soon after,
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we issued a Rule 16 scheduling order, which set a January 6, 2012 deadline for motions to
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amend the complaint (doc. 25).
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Plaintiffs filed their motion to amend on January 6, 2012. Their proposed first
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amended complaint ("FAC") adds additional factual detail, removes some claims plaintiffs
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now recognize as not cognizable, and adds a statutory claim of survivorship asserted by
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plaintiff Ruth Mitchell. The FAC consists of five counts: (1) statutory wrongful death claim
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pursuant to A.R.S. § 12-611; (2) statutory survivorship claim pursuant to A.R.S. § 14-3110;
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(3) a § 1983 claim asserted against Officer Taylor; (4) a § 1983 claim asserted against the
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City of Flagstaff; and (5) negligent infliction of emotional distress.1

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Under Rule 15(a)(2), Fed. R. Civ. P., a court should freely give leave to amend if

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justice so requires. However, an amendment must not prejudice an opposing party, be sought

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in bad faith, produce undue delay, or be futile. AmerisourceBergen Corp. v. Dialysist West,

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Inc., 465 F.3d 946, 951 (9th Cir. 2006). Defendants oppose the motion. First, they argue that

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amending the complaint to add additional facts and remove improper claims is not necessary

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and serves no purpose other than to cause undue delay. There is no undue delay here.

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Plaintiffs filed their motion to amend within the deadline we set in our Rule 16 order.

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Next, defendants argue that the inclusion of a statutory claim of survivorship serves

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no purpose other than undue delay, because decedent suffered no pre-death damages and any

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recovery under a claim of survivorship and a claim for wrongful death cannot be duplicative.

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For the reasons discussed above, the motion to amend was timely filed. Moreover, Arizona

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law recognizes that "a claim under the survival statute and a claim under the wrongful death

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statute are separate and distinct notwithstanding they originate from the same wrongful act."

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Barragan v. Superior Court of Pima Cnty., 12 Ariz. App. 402, 405, 470 P.2d 722, 725 (Ct.

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App. 1970); see also Gandy v. United States, 437 F.Supp.2d 1085, 1086 (D. Ariz. 2006)

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("wrongful death claim and a survival claim are separate claims arising from the same

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incident"). The FAC alleges that Kenneth Mitchell lost income and services and sustained

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property damage as a result of his injuries. Whether he actually suffered any recoverable

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pre-death damages is a question of fact that is unresolved at this early stage of the

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proceedings. Because Arizona considers survivorship and wrongful death separate claims,

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permitting plaintiffs to add a statutory claim of survivorship is not futile.

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Finally, defendants argue that inclusion of the statutory survivorship claim violates

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A.R.S. § 12-821.01, because plaintiffs' notice of claim failed to provide any factual or legal

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allegations sufficient to provide notice of a survivorship claim. A notice of claim must (1)

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The FAC mistakenly styles the negligent infliction of emotional distress claim as
count six.
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"contain facts sufficient to permit the public entity or public employee to understand the basis

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upon which liability is claimed;" (2) "contain a specific amount for which the claim can be

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settled;" and (3) contain "the facts supporting that amount." A.R.S. § 12-821.01(A). There

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is no requirement that plaintiffs list all legal theories in their notice. See id. The notice of

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claim details the events surrounding the death of Kenneth Mitchell. Plaintiffs allege that

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Kenneth was shot in the back four times and died. They indicate that Ruth Mitchell is

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Kenneth's spouse. Defs.' Notice of Errata, ex. A, at 3 (doc. 18). These facts are sufficient

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to place defendants on notice that Ruth Mitchell might assert a statutory survivorship claim

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for any damages Kenneth suffered from the shooting until his death. See Barragan, 12 Ariz.

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App. at 404, 470 P.2d at 724 (survivorship statute permits recovery for damages that a

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decedent suffered from the time of an event until death).

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IT IS ORDERED GRANTING plaintiffs' motion to amend (doc. 27). Plaintiffs shall
comply with the filing and service requirements of LRCiv 15.1.
DATED this 22nd day of March, 2012.

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