Vicente v. Prescott, City of et al

Filing 48

ORDER granting 39 Motion to Join Indispensable Party; granting 39 Motion to Amend/Correct: Defendants shall file their amended answer on or before November 28, 2012. Plaintiff's spouse is joined as a Plaintiff for purposes of any eventual award of fees and costs, and the Board is joined as a Defendant for purposes of injunctive relief only. Signed by Judge David G Campbell on 11/21/12.(SJF)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-11-8204-PCT-DGC

John Paul Vicente
Plaintiff,

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v.

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ORDER

City of Prescott, Arizona, et al.
Defendants.

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Defendants have filed a motion to join indispensable parties and amend their

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answer. Doc. 39. The motion has been fully briefed and no party has requested oral

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argument. Docs. 41, 45. For the reasons stated below, the motion will be granted.

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I.

Background.

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Plaintiff alleges that Defendants illegally retaliated against him for actions he took

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as the Chapter Vice President of the United Yavapai Firefighters, Prescott Chapter,

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International Association of Fire Fighters Local 3066. Doc. 1 at 7. In addition to other

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forms of retaliation, Plaintiff alleges that he was pressured under false pretenses to enter

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into the Deferred Retirement Option Plan (“DROP”). Id. at 11. Plaintiff asks that the

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Court rescind his forced enrollment in the DROP program.

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II.

Motion to Amend.

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

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justice so requires.” Fed. R. Civ. P. 15(a)(2). The policy in favor of leave to amend must

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not only be heeded, see Foman v. Davis, 371 U.S. 178, 182 (1962), it must be applied

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with extreme liberality, see Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708,

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880 (9th Cir. 2001). The Court may deny a motion to amend if there is a showing

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of undue delay or bad faith on the part of the moving party, undue prejudice to the

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opposing party, or futility of the proposed amendment. See Foman, 371 U.S. at 182.

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Defendants seek to amend their answer to include the affirmative defenses of

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waiver, release, and estoppel. Defendants argue that this does not prejudice Plaintiff or

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delay the proceedings because discovery has just begun and Defendants have previously

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raised waiver and release in their February 10, 2012 motion to dismiss. Defendants

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additionally argue that the motion to amend is not futile because Plaintiff signed forms

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waiving his claims and entering into a covenant not to sue.

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Plaintiff argues that the amended answer was unduly delayed because the

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affirmative defenses could have been raised at the time Defendants filed their answer and

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there has been no showing that Defendants received any new information. Plaintiff does

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not explain how this delay has caused him prejudice, and, absent prejudice, “[u]ndue

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delay . . . is insufficient to justify denying a motion to amend.” Bowles v. Reade, 198

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F.3d 752, 757-58 (9th Cir. 1999). Further, the motion to amend was filed within the time

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limits set by the Court. Doc. 20 at 1.

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III.

Motion to Join Parties.

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Pursuant to Rule 19, Defendants request that the Court join Plaintiff’s spouse and

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the Prescott Fire and Police Boards of the Public Safety Personnel Retirement System

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(“the Board”) as required parties. Rule 19(a) states that a nonparty is necessary if (1) in

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the person’s absence complete relief cannot be accorded among those already parties, or

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(2) the person claims an interest relating to the subject of the action and is so situated that

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disposition of the action in the person’s absence may, as a practical matter, impair the

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person’s ability to protect that interest or leave any of the persons already parties subject

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to a risk of incurring multiple or inconsistent obligations by reason of the claimed

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interest. Fed. R. Civ. P. 19(a).

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A.

Plaintiff’s Spouse.

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Defendants argue that Plaintiff’s spouse is a necessary party because, in the event
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Defendants succeed, costs and possibly attorney’s fees will be awarded against Plaintiff’s

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marital community. Plaintiff argues that the Court should wait to join his spouse until it

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becomes clearer that Defendants will succeed.

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Under Arizona law, spouses must be sued jointly to reach community assets.

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A.R.S. § 25-215; Eng v. Stein, 599 P.2d 796, 798 (Ariz. 1979). Plaintiff could ultimately

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be responsible for costs and attorneys’ fees in this case. See Fed. R. Civ. P. 54(d); Tutor-

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Saliba Corp v. City of Haley, 452 F.3d 1055, 1061-64 (9th Cir. 2006); A.R.S. §12-

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341.01; A.R.S. §12-349. Plaintiff’s spouse must be joined if an award of costs and fees is

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to be enforceable against the marital community.

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This meets the requirements of

Rule 19, and the Court sees no point in postponing her joinder.

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B.

Board.

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Defendants argue that the Board is a necessary party under Rule 19 because the

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Board is responsible for administration of DROP and any injunctive relief concerning

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DROP must include the Board. Plaintiff does not dispute this factual assertion. Plaintiff

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instead argues that the Court can enforce an injunction against the Board without it being

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a party. Plaintiff’s argument implicitly accepts that an injunction binding the Board is

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necessary in this case.

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Plaintiff bases his argument on a quotation from Reebok Intern. Ltd. v.

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McLaughlin, 49 F.3d 1387, 1391 (9th Cir. 1995), stating that “[t]he nationwide scope of

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an injunction carries with it the concomitant power of the court to reach out to nonparties

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who knowingly violate its order.” But this statement merely quotes the district court

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decision that the Ninth Circuit reversed. Id. at 1388. Other Ninth Circuit cases have held

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that a party is necessary under Rule 19 if that party is a necessary subject of the

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injunctive relief requested by the plaintiff. See E.E.O.C. v. Peabody W. Coal Co., 400

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F.3d 774, 780 (9th Cir. 2005); Dawavendewa v. Salt River Project Agr. Imp. & Power

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Dist., 276 F.3d 1150, 1156 (9th Cir. 2002).

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IT IS ORDERED that Defendants’ motion (Doc. 39) is granted. Defendants

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shall file their amended answer on or before November 28, 2012. Plaintiff’s spouse is
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joined as a Plaintiff for purposes of any eventual award of fees and costs, and the Board

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is joined as a Defendant for purposes of injunctive relief only.

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Dated this 21st day of November, 2012.

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