Foust et al v. Page, City of et al

Filing 99

ORDER granting 84 Motion re filing Exhibit F in non-electronic format; granting in part and denying in part 85 Motion for Summary Judgment; denying 91 Motion to Amend/Correct. The Court will set a final pretrial conference by separate order. Signed by Judge David G Campbell on 5/6/2014.(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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Shannon E. Foust, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-12-08115-PCT-DGC

Page, et al.,

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Defendants.

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Defendants City of Page, Officer Wilson and his spouse, and Chief Charles Dennis

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and his spouse (collectively, “Defendants”) have filed a motion for summary judgment.

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Docs. 85, 86. The motion has been fully briefed. Docs. 92, 93, 98. Plaintiffs seek leave

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to amend their complaint to add as Plaintiffs the Estate of William Dale Foust and Brynn

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Foust D’Avello as personal representative of the Estate. Doc. 91. That motion is also

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fully briefed. Docs. 96, 97. For the reasons stated below, Defendant’s motion for

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summary judgment will be granted in part and denied in part and Plaintiff’s motion to

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amend will be denied.1

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I.

Background.

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Toni Foust and Decedent Bill Foust purported to marry in February 1996.

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Doc. 86, ¶ 1. The Fousts owned a watercraft store in the City of Page, which also served

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The request for oral argument is denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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as their residence. Id., ¶ 2. During the time the Fousts lived there, Toni Foust called 911

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on a number of occasions and filed for and received two orders of protection against

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Decedent. Id., ¶ 3. Plaintiffs allege that these calls and orders were related to marital

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disputes and verbal abuse by Decedent, but Defendants dispute this, asserting that Toni

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Foust “believes 911 should be called when you need someone to come and help resolve a

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situation” and that she “had a habit of calling the police every time she thought they

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could assist her in a dispute related to her business or with Mr. Foust.” Doc. 92, ¶¶ 4-5.

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Defendants allege that Decedent was an active member of a sovereignty group who took

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issue with police in general, was confrontational, and would not back down. Doc. 86,

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¶¶ 15-18. Defendants dispute these allegations. Doc. 92, ¶¶ 15-18.

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On the morning of Sunday, June 19, 2011, Decedent spoke with his daughter,

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Brynn Foust D’Avello, and told her that he was thinking about leaving Toni and moving

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to California. Doc. 86, ¶ 21. Later that day Toni called 911 from the shop to report that

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Decedent was loading paperwork from their business into his truck. Id., ¶ 23. The 911

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dispatcher issued a domestic dispute call, to which Officer Wilson responded. Id., ¶ 24.

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Wilson asked the dispatcher whether there was an order of protection in place. Id.

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Wilson entered the Foust’s shop in full uniform, with a camera affixed to his chest. Id.,

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¶¶ 26, 28.

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Upon arrival on the scene, Wilson asked Toni what was going on. Id., ¶ 29. Toni

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told him that Decedent was “pissed off” and was removing paperwork from the house.

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Id., ¶ 30. Wilson then informed her that the removal of the paperwork was a civil matter

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about which he could do nothing, and that only if physical violence was threatened could

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he intervene. Id., ¶¶ 29-32. Toni then described an incident in which Decedent had

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pushed a table at her and called her obscenities. Id., ¶ 33. Decedent then entered the

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shop’s front door and told Wilson that if he wanted to talk with Toni he would need to go

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outside. Id., ¶ 36. Wilson refused and told Decedent “You don’t tell me what to do, you

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go stand over there,” and that he was “good right here man.” Id. Decedent then left the

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building. Id. Toni informed Wilson that Decedent had a gun, to which Wilson replied

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“That is fine, so do I.” Id., ¶ 38.

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Decedent re-entered the building and again told Wilson that he was not welcome

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in his shop, to which Wilson replied “I didn’t ask you if I could be in here sir.” Id., ¶ 40.

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Decedent asked Wilson for his name, to which Wilson gave his last name but refused to

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give his first. Id., ¶ 41. Decedent told Wilson “You better be careful the way you talk to

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me.” Id. During this exchange, Toni gestured to Wilson and mouthed “call for backup.”

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Id., ¶ 43. Wilson and Toni then left the building to continue their conversation. Id., ¶ 44.

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Toni informed Wilson that Decedent had been verbally abusive to her and told her that he

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did not know how much time she has left. Id.

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While Toni and Wilson were talking, Decedent exited the building and got into his

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truck, which was parked near the shop. Id., ¶ 45. Decedent started his truck and moved

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it backwards as Wilson was passing near the rear of the truck. Id., ¶ 47, Doc. 92, ¶ 47.

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The parties dispute whether Decedent knew Wilson was behind the truck.

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approached the driver’s side of the vehicle and struck the driver’s side glass window,

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yelling “You don’t run me over,” “[g]et your ass over here right now,” and, after

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Decedent got out of the car, “[g]et on the fuckin’ ground right now.” Doc. 86, ¶¶ 50-52.

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Decedent got back into his vehicle and tried to close the door, but Wilson attempted to

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hold it open, pulling the armrest off. Id., ¶ 54. The door was pulled open and Decedent

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emerged and the two struggled for the next few seconds, Wilson telling Decedent to get

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on the ground and Decedent attempting to get back into the truck. Id. During the

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struggle, Wilson deployed his taser and the two struggled over the taser, falling to the

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ground. Id., ¶¶ 57-59. At some point Wilson lost the taser, pulled his duty weapon, and

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pointed it at Decedent. Id., ¶¶ 60, 63. Officer Wilson fired two shots, striking Decedent

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in the chest and the forehead. Id., ¶ 67. Decedent fell forward and landed face down. Id.

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The entire encounter lasted approximately four and a half minutes from the time Wilson

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arrived at the business to the gunshots. Decedent died as a result of the gunshot wounds.

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Wilson

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A .45 caliber Glock model handgun was later recovered from the passenger

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compartment of Decedent’s truck, loaded with 12 live rounds. Id., ¶ 69. Two witnesses

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claimed to see at least some portion of the struggle between Wilson and Decedent and

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both gave statements. Id., ¶¶ 71-83.

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II.

Legal Standard.

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A party seeking summary judgment “bears the initial responsibility of informing

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the district court of the basis for its motion, and identifying those portions of [the record]

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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the

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evidence, viewed in the light most favorable to the nonmoving party, shows “that there is

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no genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a

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party who “fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at

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trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome

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of the suit will preclude the entry of summary judgment, and the disputed evidence only

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raises a genuine issue of fact “if the evidence is such that a reasonable jury could return a

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verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986).

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III.

Analysis.

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A.

Assertion of § 1983 Claim by Surviving Daughters.

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Defendants argue that Plaintiff’s § 1983 claim fails because Decedent’s estate was

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not included as a plaintiff, and Plaintiffs, as third parties, did not assert a survival claim

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and cannot assert constitutional claims on Decedent’s behalf. Doc. 85 at 9.

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Fourth Amendment rights are personal and may not be asserted vicariously.

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Alderman v. United States, 394 U.S. 165, 174 (1969). “[T]he general rule is that only the

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person whose Fourth Amendment rights were violated can sue to vindicate those rights.”

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Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998) (citing

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Smith v. City of Fontana, 818 F.2d 1411, 1417 (9th Cir. 1987)). “In § 1983 actions,

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however, the survivors of an individual killed as a result of an officer’s excessive use of

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force may assert a Fourth Amendment claim on that individual’s behalf if the relevant

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state’s law authorizes a survival action.” Moreland, 159 F.3d at 369 (citing 42 U.S.C.

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§ 1988(a); Smith, 818 F.2d at 1416–17). “The party seeking to bring a survival action

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bears the burden of demonstrating that a particular state’s law authorizes a survival action

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and that the plaintiff meets that state’s requirements for bringing a survival action.”

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Moreland, 159 F.3d at 369.

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Arizona law authorizes survival actions, but Plaintiffs did not bring a survival

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action, most likely because only representatives of the estate may bring such an action.

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See A.R.S. § 14-3110. Plaintiffs do not purport to represent the estate. Plaintiffs do appear

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to assert that they can bring a § 1983 claim on behalf of Decedent because they are his

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children (Doc. 93 at 11), but Plaintiffs cite no authority for this proposition. When a

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Fourth Amendment violation forms the basis of a § 1983 claim, and the state has a

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survival statute, such a claim can be asserted by the estate, but not by children of the

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victim merely by virtue of their status as children. Smith v. City of Fontana, 818 F.2d

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1411, 1417 (9th Cir. 1987) (“The children were not directly subjected to the excessive

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use of state force and therefore cannot maintain personal causes of action under section

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1983 in reliance on this Fourth Amendment theory.”) (overruled on other grounds by

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Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n. 1 (9th Cir. 1999)). Plaintiffs

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cannot, therefore, assert § 1983 claims based on a Fourth Amendment theory.

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A claim of excessive force under § 1983 has also been recognized as a substantive

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due process claim. Smith, 818 F.2d at 1417. The Fourteenth Amendment’s Due Process

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Clause applies to governmental actions that impermissibly deprive one of a life, liberty,

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or property interest of constitutional magnitude. Moreland, 159 F.3d at 370 (citing Board

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of Regents v. Roth, 408 U.S. 564, 569–70 (1972); Wedges/Ledges of Cal., Inc. v. City of

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Phoenix, 24 F.3d 56, 62 (9th Cir. 1994)). The Ninth Circuit has recognized that “adult

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and minor children ha[ve] a cognizable liberty interest in their relationship with their

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father.” Smith, 818 F.2d at 1419. Plaintiffs in this case, however, do not allege that the

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Decedent’s death deprived them of “his love, comfort, and support,” as was alleged in

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Smith. Id. The complaint alleges only that the excessive force killed Mr. Foust; it says

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nothing about injuries suffered by his daughters. Where a party has “identified no life,

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liberty, or property interest of which they were deprived,” the only potential claims are

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those on behalf of the Decedent’s estate. Moreland, 159 F.3d at 370-71. And as noted

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above, claims on behalf of Decedent’s estate have not been properly asserted in this case.

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B.

Motion to Amend.

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Plaintiffs seek leave to amend their complaint to add the Personal Representative

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(“PR”) of Decedent’s estate as a plaintiff. Doc. 91. While acknowledging that the

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Court’s deadline for amending pleadings passed some seven months before the motion to

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amend was filed,2 Plaintiffs assert that a “late and wholly unexpected discovery” that

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Toni Foust and Decedent were never legally married, followed by what they allege was

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months of confusion and dissention within the family, prevented them from adding the

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PR until now. Doc. 91 at 1-2. Defendants argue that there is no good cause for

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Plaintiffs’ delay, as Plaintiffs knew about the illegitimacy of the marriage for at least six

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months before they sought to have a PR appointed, and that they made a strategic

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decision not to include the estate as a plaintiff at the outset of the case. Doc. 96.

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Defendants also argue that they will be unduly prejudiced by the addition of the estate as

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a party. Id.

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When a party seeks leave to amend after the deadline for doing so has passed, the

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Court is confronted with a two-step inquiry: (1) whether Plaintiffs have demonstrated

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“good cause” to modify the Case Management Order under Rule 16(b)(4) of the Federal

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Rules of Civil Procedure, and (2) whether Plaintiffs’ proposed amendment should be

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granted under Rule 15.

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The Case Management Order set the deadline to add parties as March 30, 2013.
Plaintiffs filed their motion to amend on January 30, 2014.
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Deadlines established in a case management order may “be modified only for

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good cause[.]” Fed. R. Civ. P. 16(b)(4); see Johnson v. Mammoth Recreations, Inc., 975

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F.2d 604, 608 (9th Cir. 1992). “Good cause” exists when a deadline “cannot reasonably

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be met despite the diligence of the party seeking the extension.” Fed. R. Civ. P. 16

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Advisory Comm.’s Notes (1983 Am.).

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primarily considers the diligence of the party seeking the amendment.” Johnson, 975

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F.2d at 609; see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).

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Where that party has not been diligent, the inquiry ends. Zivkovic v. S. Cal. Edison Co.,

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302 F.3d 1080, 1087 (9th Cir. 2002); Johnson, 975 F.2d at 609.

Thus, “Rule 16(b)’s ‘good cause’ standard

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Plaintiffs argue that “once the unexpected situation was discovered, Plaintiff

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moved as swiftly as possible to correct the potential problem.” Doc. 91 at 9. Plaintiffs

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assert that they did not discover that the marriage was invalid until June, 2013 – three

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months after the amendment deadline.

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“competing claims to the estate” and “a breakdown in the working relationship” between

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Toni and her two stepdaughters, the other Plaintiffs in the case. Doc. 97 at 6. Plaintiffs

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assert that they attempted to initiate probate of the estate throughout the summer of 2013,

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and contacted opposing counsel to inform them of their plans to appoint a PR and amend

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the complaint. Doc. 97-1 at 3.

At that point, Plaintiffs assert, there were

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The Court cannot conclude, however, that Plaintiffs acted diligently. Plaintiffs

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concede that they learned in late June of 2013 that Toni was not legally married to

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Decedent. Indeed, Plaintiffs filed a motion to dismiss Toni from the case on July 1, 2013.

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Doc. 67. Despite this knowledge, Plaintiffs allowed the fact discovery deadline to pass

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on July 26, 2013, the expert disclosure and deposition deadlines to pass later in 2013, the

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summary judgment deadline to pass on December 13, 2013, and another six weeks to

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pass before they filed a motion to amend their complaint.

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Defendants had filed a motion for summary judgment identifying the defect in Plaintiffs’

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case that they even sought appointment of the PR. Plaintiffs argue that internal family

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issues caused the delay, but they do not explain why these issues prevented them from

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It was not until after

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seeking appointment of the PR and amendment of the complaint, or why they were able

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to act within one week to seek appointment of the PR after Defendants filed their motion

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for summary judgment. Nor do they explain why they allowed seven months to elapse

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without advising the Court that a key party to the case was missing and they would need

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to amend the complaint as soon as the PR was appointed. The Court is not persuaded that

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Plaintiffs acted diligently to resolve the issue that became apparent in June of 2013.

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Even if the Court did find good cause for the late motion to amend, the motion

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would not pass muster under Rule 15. Although the Court “should freely give leave

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[to amend] when justice so requires,” the liberal policy in favor of amendments under

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Rule 15 has limitations. Motions to amend should not be granted if there has been

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(1) undue delay, (2) bad faith or dilatory motives on the part of the movant, (3) repeated

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failure to cure deficiencies by previous amendments, (4) undue prejudice to the opposing

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party, or (5) futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182

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(1962); see U.S. ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir.

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2001).

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Plaintiff’s request to amend comes after fact and expert discovery in the case have

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been completed and Defendant’s motion for summary judgment has been filed.

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Defendants have credibly shown that their strategy in discovery and motion practice was

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focused on the existing Plaintiffs and the § 1983 claims asserted in the case. Doc. 96 at

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9-10. To permit Plaintiffs to add a new party and change the legal nature of the § 1983

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claim at this late stage would unduly prejudice Defendants.

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The motion to amend is denied. The Court will enter summary judgment on
Plaintiff’s § 1983 claims.

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B.

Wrongful Death Claim.

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Plaintiffs assert state wrongful death claims. “In the usual case in which all

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federal-law claims are eliminated before trial, the balance of factors . . . will point toward

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declining to exercise jurisdiction over the remaining state-law claims,” Carnegie-Mellon

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Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (citing United Mine Workers of America v.

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Gibbs, 383 U.S. 715, 726 (1966)). Nevertheless, “a federal district court with power to

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hear state law claims has discretion to keep, or to decline to keep, them under the

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conditions set out in [28 U.S.C.] § 1367(c).” Munger v. City of Glasgow Police Dep’t,

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227 F.3d 1082, 1089 (9th Cir. 2000). The Court’s decision whether to dismiss such

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claims should be informed by the values “of economy, convenience, fairness, and

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comity.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) supplemented,

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121 F.3d 714 (9th Cir. 1997) (citing Allen, 92 F.3d at 846; Executive Software N. Am. v.

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United States Dist. Court, 24 F.3d 1545, 1557 (9th Cir. 1994)). Because the wrongful

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death claims are factually similar to and based on substantially the same allegations as the

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§ 1983 claims, and because discovery in this case has closed and the Court is familiar

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with the record that has been developed, the Court will retain jurisdiction over these

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claims.

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Defendants move for summary judgment on the wrongful death claim, arguing

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that there is a statutory presumption under Arizona law that an officer acts reasonably in

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using physical or deadly force when the officer protects himself from the use of physical

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force, and that the evidence is clear that Plaintiffs cannot overcome this presumption.

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Doc. 85 at 21 (citing ARS s. 12-716(A)(1)). Defendants also argue that “no reasonable

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jury could conclude that Officer Wilson acted unreasonably under the circumstances,”

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that Officer Wilson’s actions were justified as a matter of law, and that he cannot be held

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liable for engaging in justified conduct. Doc. 85 at 22 (citing A.R.S. § 13-413; Marquez

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v. City of Phoenix, 693 F.3d 1167, 1176 (9th Cir. 2012); Austin v. City of Scottsdale, 684

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P.2d 151, 153-54 (Ariz. 1984)).

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Under Arizona law, an action for wrongful death is a statutory negligence action,

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requiring a showing that the tortfeasor breached a reasonable standard of care. Walsh v.

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Advanced Cardiac Specialists Chartered, 273 P.3d 645, 648 (Ariz. 2012); Porter v.

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Arizona Dep’t of Corr., 2:09-CV-2479-HRH, 2012 WL 7180482, at *3 (D. Ariz.

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Sept. 17, 2012). Plaintiffs have submitted expert testimony that Officer Wilson violated

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the standard of care; Defendants’ expert disagrees. Docs. 86, ¶¶ 62, 65; 92, ¶¶ 62, 65,

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191-93. This factual dispute must be resolved by the jury, not the Court.

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Further, the Court cannot accept Defendants’ argument that A.R.S. § 13-410(C)(1)

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provides justification for Wilson’s actions as a matter of law. The statute provides that

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“[t]he use of deadly force by a peace officer against another is justified . . . only when the

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peace officer reasonably believes that it is necessary . . . [t]o defend himself or a third

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person from what the peace officer reasonably believes to be the use or imminent use of

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deadly physical force.” Id. Again, Plaintiffs’ and Defendants’ experts disagree on

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whether a reasonable officer would have believed Wilson’s actions were necessary.

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Docs. 86, ¶¶ 62, 65; 92, ¶¶ 62, 65, 191-93. This factual dispute precludes summary

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judgment.

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C.

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Defendants seek summary judgment on Plaintiff’s request for punitive damages.

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Doc. 85 at 22. They argue that a municipality cannot be liable for punitive damages on

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claims under § 1983 or for wrongful death, and public employees sued in their official

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capacities are immune from punitive damages. A.R.S. § 12-820.04; Mitchell v. Dupnik,

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75 F.3d 517, 527 (9th Cir. 1996). Plaintiffs argue that they have submitted sufficient

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evidence from which a reasonable jury could conclude that Officer Wilson acted with the

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intent to harm Decedent, as well as evidence from which the jury could conclude that

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Chief Dennis was aware of and recklessly ignored Officer Wilson’s pattern of erratic and

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malicious behavior. Doc. 93 at 22.

Punitive Damages.

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The only claims remaining in this case are state law claims. Arizona law holds

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that “[n]either a public entity nor a public employee acting within the scope of his

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employment is liable for punitive or exemplary damages.” A.R.S. § 12-820.04. Punitive

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damages, therefore, are not available.

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IT IS ORDERED:

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and denied in part.

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Defendants’ motion for summary judgment (Doc. 85) is granted in part

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Plaintiff’s motion to amend (Doc. 91) is denied.

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3.

Defendants’ motion to file Exhibit F in non-electronic format (Doc. 84) is
granted.

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The Court will set a final pretrial conference by separate order.

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Dated this 6th day of May, 2014.

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