Vicente v. Prescott, City of et al

Filing 208

ORDER denying 184 Motion to Amend/Correct. Signed by Judge David G Campbell on 4/3/2014.(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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John Paul Vicente, a married man,
Plaintiff,

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ORDER

v.

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No. CV11-08204-PCT-DGC

City of Prescott, et al.,

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Defendants.

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Plaintiff has requested leave to amend his complaint for the fourth time. Doc. 184.

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The motion has been fully briefed. Docs. 196, 203. For the reasons stated below the

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Court will deny the motion.

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I.

Background.

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Plaintiff John Paul Vicente, a former firefighters’ union leader, has sued the

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Prescott Fire Department and the City of Prescott for unlawful retaliation and

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discrimination for complaining about sexual harassment by a Prescott Fire Department

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officer. Doc. 1. In his original complaint, Plaintiff named Mary Jacobsen, the City’s

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Human Resources Director, as a defendant, and sued all defendants for defamation per se,

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among other claims. Id., ¶¶ 87-96. In April, 2011 the Court dismissed Plaintiff’s claim

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for defamation per se as to all defendants except Steven Norwood, Prescott’s City

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Manager, and the City of Prescott, because Plaintiff failed to identify any other

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individuals who had published false statements to a third party. Doc. 11.

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On December 13, 2013, during the course of discovery, Plaintiff deposed Mark

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Diedrick, a Prescott firefighter and former colleague of Plaintiff. Docs. 184 at 5, 196 at

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5. During that deposition, Plaintiff claims to have discovered details regarding Defendant

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Jacobsen’s publication of statements defaming Vicente that provide grounds for stating a

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claim for defamation against Jacobsen. Doc. 184 at 5.

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II.

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Analysis.
Plaintiff seeks to add a claim of defamation per se against Defendant Jacobsen.

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Doc. 184 at 1.

Defendant City of Prescott (“the City”) argues that the requested

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amendment violates the Court’s scheduling order and is both futile and unnecessary.

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Doc. 196 at 7-12.

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The Court’s most recent Case Management Order contains the following

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paragraph:
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Deadline for Joining Parties, Amending Pleadings, and Filing Supplemental
Pleadings.. The deadline for joining parties, amending pleadings, and filing
supplemental pleadings is 60 days from the date of this Order.

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(Doc. 11) (emphasis in original). The Case Management Order was dated August 22,

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2013. The deadline for filing motions for leave to amend was therefore October 21,

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2013. Plaintiffs’ motion was filed on January 30, 2014, more than 90 days after the

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deadline for such motions.

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Plaintiff’s motion does not mention the fact that it is untimely. Plaintiffs’ reply,

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filed after Defendant noted Plaintiff’s failure to comply with the Case Management

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Order, argues that he has demonstrated good cause to extend the deadline. The Court is

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confronted with a two-step inquiry when deciding whether a party should be allowed to

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modify a scheduling order: (1) whether Plaintiff has demonstrated “good cause” to

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modify the Case Management Order under Rule 16(b) of the Federal Rules of Civil

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Procedure, and (2) whether Plaintiff’s proposed amendment should be granted under the

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standards of Rule 15 of the Federal Rules of Civil Procedure.

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Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party

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seeking the amendment. Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 609 (9th

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Cir. 1992). “The district court may modify the pretrial schedule ‘if it cannot reasonably

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be met despite the diligence of the party seeking the extension.’” Id.

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(quoting

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Fed. R. Civ. P. 16 advisory committee’s notes (1983 amendment)). “[C]arelessness is not

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compatible with the finding of diligence and offers no reason for a grant of relief.”

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Plaintiff alleges that he was diligent in his efforts to establish a factual basis to re-

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allege defamation per se against Jacobsen, but that defense counsel frustrated his efforts

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to discover information that would give him a factual basis for the claim. Doc. 203 at 5.

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Even if that is so, Plaintiff’s motion is clear that, at the very latest, he discovered the

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factual basis for this claim during the deposition of Mark Diedrick on December 13,

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2013.1 Plaintiff did not seek leave to amend his complaint until more than two months

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later. He failed to act diligently to file the motion upon learning of the factual basis for

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the additional claim.

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More importantly, this case has been pending for more than two years. Plaintiff

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had more than 19 months to conduct discovery. Doc. 20. Plaintiff has claimed since the

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complaint was filed that he was defamed. The Court is not persuaded that Plaintiff was

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unable to conduct targeted discovery that would have allowed him to assert the

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defamation claim against individuals who allegedly published defamatory statements.

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Discovery has now closed and motions for summary judgment have been filed. Docs.

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204, 206. The Court concludes that Plaintiff has not been sufficiently diligent to satisfy

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the good cause standard for amending pleadings at this late stage of the litigation.

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Plaintiff’s proposed amendment also does not meet the standard of Rule 15.

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Rule 15 makes clear that the Court “should freely give leave [to amend] when justice so

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requires.” Fed. R. Civ. P. 15(a)(2). The policy in favor of leave to amend must not only

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be heeded, see Foman v. Davis, 371 U.S. 178, 182 (1962), it must be applied with

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extreme liberality, see Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 880 (9th

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Cir. 2001). Nevertheless, a motion for leave to amend should be denied “if permitting an

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amendment would prejudice the opposing party, produce an undue delay in the litigation,

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or result in futility for lack of merit.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387

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Defendant claims that Plaintiff has known about the defamation by Jacobsen for
more than two years.
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(9th Cir. 1990). The party seeking amendment bears the burden of showing that the

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amendment would not result prejudice, delay or be futile. Id.

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The City notes that the motion to amend was filed when less than three weeks

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remained in the already-extended discovery period. The City asserts that this new claim

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“opens up an entirely new area of inquiry upon which Defendants would be deprived of

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meaningful discovery.” Doc. 196 at 11. Plaintiff responds that the amendment is not a

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new allegation, it was alleged in Plaintiff’s original complaint, and Defense Counsel has

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already questioned witnesses about the conversation that provided the factual basis for

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the new claim. Doc. 203 at 9.

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Plaintiff’s claim of defamation per se in the original complaint was not a claim

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alleged specifically against Jacobsen, but rather against Defendants as a whole. Doc. 1.

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Plaintiff’s original complaint stated no facts about the allegedly defamatory statements

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made by Jacobsen in February 2012, nor did it name Jacobsen as one of the defendants

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who had made defamatory statements. Id. The proposed new claim would require proof

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of different facts than the existing defamation per se claim, which is against two other

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defendants. This would require additional discovery, which would add time and expense

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for the other parties. See, e.g., Jackson, 902 F.2d at 1387; Priddy v. Edelman, 883 F.2d

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438, 447 (6th Cir.1989) (“Putting the defendants through the time and expense of

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continued litigation on a new theory, with the possibility of additional discovery, would

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be manifestly unfair and unduly prejudicial.”) (internal quotations omitted).

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Additionally, “whether the moving party knew or should have known the facts and

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theories raised by the amendment in the original pleading” is relevant to evaluating the

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delay issue. Jackson, 902 F.2d at 1388. Defendants assert that Plaintiff has known the

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facts underlying this claim since April 2012, yet still failed to seek an amendment to his

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complaint until well after the Court’s deadline. Doc. 196 at 8. And, as the Court has

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noted, even if Plaintiff did not have sufficient facts to support such a claim at that time,

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Plaintiff had ample opportunity to develop them through diligent and targeted discovery

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well before the discovery deadline arrived.

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IT IS THEREFORE ORDERED that Plaintiff’s motion to amend his third
amended complaint (Doc. 184) is DENIED.
Dated this 3rd day of April, 2014.

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