Biscotti et al v. City of Yuba et al

Filing 62

ORDER signed by District Judge John A. Mendez on 7/29/16 ORDERING that Plaintiff's MOTION for Leave to File a FAC 51 is DENIED. The Court declines to exercise supplemental jurisdiction over Plaintiffs' remaining negligence claim and the case is DISMISSED without prejudice. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MATTHEW BISCOTTI, CHRISTIAN
BISCOTTI,

No.

2:11-cv-01347-JAM-EFB

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Plaintiffs,
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v.
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CITY OF YUBA CITY, a public
entity, OFFICER DAVID KRAUSE,
OFFICER DAVID SANTANNA, CHIEF
ROBERT D. LANDON,

ORDER DENYING PLAINTIFFS’ MOTION
FOR LEAVE TO FILE A FIRST
AMENDED COMPLAINT AND DISMISSING
CASE

Defendants.

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Presently before the Court is Plaintiffs Matthew Biscotti

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and Christian Biscotti’s (“Plaintiffs”) Motion for Leave to File

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a First Amended Complaint (FAC) (Doc. #51).

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of the fatal shooting of Plaintiffs’ mother, Victoria (Matthews)

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Rogers-Vasselin (“Decedent”), by Yuba City Police Officers on May

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20, 2010. Defendants City of Yuba City, Officer David Kraus,

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Officer David Santanna, and Chief Robert D. Landon (“Defendants”)

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oppose this motion to amend (Doc. #55). Plaintiffs filed a reply

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brief in support of their motion (Doc. #57) but raised new

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arguments in this brief. The Court therefore permitted Defendants
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This case arises out

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to file a sur-reply brief (Doc. #61).

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considered the parties’ arguments, the Court denies Plaintiffs’

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motion for the reasons set forth below. 1

Having carefully

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I. PROCEDURAL BACKGROUND

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Plaintiffs filed this wrongful death lawsuit on May 18,

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2011. The Complaint alleged the following four claims:

(1)

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violation of the Fourteenth Amendment’s due process provision;

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(2) violation of civil rights (Monell claim); (3) supervisory

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liability; and (4) negligence.

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the Court issued a Status (Pre-trial Scheduling) Order (PTSO)

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(Doc. #11) which states:

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amendments to pleadings is permitted except with leave of court,

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good cause having been shown.”

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completion date of February 27, 2013.

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See Compl.

On January 13, 2012,

“No further joinder of parties or

The PTSO set a discovery

On April 3, 2013, Defendants moved for summary judgment on

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all of Plaintiffs’ claims (Doc. #17), and on May 15, 2013, the

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Court granted summary judgment in Defendants’ favor on all claims

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(Doc. #36).

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Circuit.

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unpublished opinion, affirmed in part and reversed in part this

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Court’s Order granting summary judgment for Defendants (Doc. #46)

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and remanded only the negligence claim back to this Court for

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jury trial. The mandate issued on February 23, 2016. (Doc. #47)

Plaintiffs appealed this decision to the Ninth

On January 27, 2016, the Ninth Circuit, in an

Nearly three months later, on May 13, 2016, Plaintiffs filed

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for July 19, 2016.
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this Motion to Amend the Complaint seeking to add a claim under

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California’s Bane Act, a battery claim, and a Fourth Amendment

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excessive force claim. (Doc. #51)

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complaint named an additional defendant, Officer Wolfe, however,

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in Plaintiffs’ reply brief they agree to “withdraw all proposed

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claims as stated against Officer Wolfe in the proposed First

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Amended Complaint.”

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new claims are based on the Decedent’s alleged temporary post-

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shooting survival. Plaintiffs thus seek to shift the primary

Plaintiffs’ proposed amended

Pls.’ Reply 2:3-6 (Doc. #57)

Plaintiffs’

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theory of their case from a wrongful death action to a survivor

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action.

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have failed to and cannot demonstrate good cause and that they

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will be unduly prejudiced if Plaintiffs’ motion is granted.

Defendants oppose this motion arguing that Plaintiffs

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I.

OPINION

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A.

Legal Standard

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In their motion, Plaintiffs rely on the standard set out in

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Federal Rule of Civil Procedure (“Rule”) 15(a)(2), which

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provides:

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opposing party’s written consent or the court’s leave.

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should freely give leave when justice so requires.”

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P. 15(a)(2).

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this matter specifying amendments to the pleadings require a

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showing of good cause.

“[A] party may amend its pleading only with the
The court

Fed. R. Civ.

However, the Court has already issued a PTSO in

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Although Rule “15(a) liberally allows for amendments to

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pleadings,” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th

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Cir. 2000), this policy does not apply after a district court has

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issued “a pretrial scheduling order that established a timetable
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for amending the pleadings, and the deadline ha[s] expired.”

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Rather, parties seeking to amend their pleadings “must show good

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cause for not having amended their complaints before the time

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specified in the scheduling order expired.”

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‘primarily considers the diligence of the party seeking the

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amendment.’”

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975 F.2d 604, 609 (9th Cir. 1992)).

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Id.

Id.

“This standard

Id. (quoting Johnson v. Mammoth Recreations, Inc.,

If good cause exists, parties next must satisfy Rule 15(a).
Cf. Johnson, 975 F.2d at 608.

As stated, Rule 15(a)(2) makes

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clear that courts should “freely give leave when justice so

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requires,” Fed. R. Civ. P. 15(a)(2), and the Ninth Circuit has

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noted that the policy is one “to be applied with extreme

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liberality,” Morongo Band of Mission Indians v. Rose, 893 F.2d

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1074, 1079 (9th Cir. 1990).

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permit or deny a party to amend its pleading, Ninth Circuit

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courts consider five factors:

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filed with undue delay; (2) whether the movant has requested the

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amendment in bad faith or as a dilatory tactic; (3) whether the

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movant was allowed to make previous amendments which failed to

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correct deficiencies in the complaint; (4) whether the amendment

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will unduly prejudice the opposing party; and (5) whether the

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amendment would be futile.

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(1962).

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party is the most important factor in a court’s analysis under

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Rule 15(a).

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1048, 1052 (9th Cir. 2003).

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In exercising their discretion to

(1) whether the amendment was

Foman v. Davis, 371 U.S. 178, 182

Whether amendment will unduly prejudice the opposing

Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

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B.

Analysis
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Rule 16

In Plaintiffs’ opening brief in support of their motion,

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they completely fail to acknowledge that the proposed amendment

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is brought after the Court’s amendment deadline and is subject to

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Rule 16’s good cause requirement.

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receiving Defendants’ opposition brief), Plaintiffs acknowledge

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in their reply brief that their request to amend is subject to

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Rule 16’s good cause requirement.

Recognizing this error (after

Plaintiffs contend that they

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have satisfied the good cause requirement because “there was

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insufficient evidence then possessed to state the proposed causes

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of action in the original [c]omplaint.”

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Plaintiffs further argue that “during the course of litigation,

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evidence was discovered that ultimately led Plaintiffs and their

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counsel to conclude that these additional causes of action were

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in fact meritorious.”

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discovery of evidence and the summary judgment hearing, “[i]t was

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only after the matter came back before this Court that Plaintiffs

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were able to take the next step by filing the present [m]otion.”

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Id. at 3:8-9.

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Id. at 3:2-3.

Reply 2:27-3:1.

Due to the timing of the

Plaintiffs also claim that:

[A]fter the Court granted summary judgment and while
the appeal was pending, the Ninth Circuit decided
Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1103-05
(9th Cir. 2014). In that opinion, the Ninth Circuit
conclusively determined for the first time that the
then existing “prohibition against pre-death pain and
suffering damages limits recovery too severely to be
consistent with § 1983’s deterrence policy.” Chaudhry,
at 1105. Federal law had been silent on this point
until this case was decided. Id. at 1103. Therefore,
the proposed cause of action pursuant to § 1983 was not
viable until this decision was handed down during the
pendency of the appeal in this case, further
establishing good cause for allowing amendment.

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Id. at 3:10-17.

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In response to these arguments Defendants contend that

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“Plaintiffs cannot establish that they reasonably and diligently

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sought leave to amend their complaint.”

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argue that Plaintiffs’ contentions that “they were unaware of the

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facts and the new proposed causes of action until they conducted

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discovery, and after the appellate process was complete” “are

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belied by the contents of their [October 15, 2010] tort claim

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presented to the City of Yuba City nearly six years ago and the

Opp’n 6:3-4.

Defendants

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procedural history of this case.”

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knew of these claims [and] knew of the facts supporting those

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claims . . . .”

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also point out that Plaintiffs’ reply brief “fails to identify by

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type, source, or content the new evidence of survival

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[Plaintiffs] purportedly located at the end of discovery, nor

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does the reply say why that evidence wasn’t earlier found, nor is

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there a corresponding declaration of counsel.”

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2:24-26, ECF No. 61.

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argument regarding Chaudry, Defendants contend that:

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Id. at 6:8-9.

Id. at 6:6-7.

“Plaintiffs

In their sur-reply Defendants

Defs.’ Sur-reply

Finally, in response to Plaintiffs’

[B]efore Chaudhry, [P]laintiffs could and did assert
§ 1983 survival claims in district court –
[Plaintiffs’] counsel could have noted the split and
attempt[ed] to convince this Court the more liberal
view was correct, which is precisely what the estate in
Chaudhry did. . . . Even if this Court had determined
the § 1983 survival claim [was] barred, as occurred in
Chaudhry when the district court set aside the verdict
for the estate, the issue would have been preserved for
appeal.

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Sur-reply 4:15-21.
The Court finds Defendants’ arguments to be persuasive and
legally compelling.

The record in this case demonstrates that
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Plaintiffs have known about the additional claims they now seek

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to add since 2010 yet they chose not to include such claims in

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the original complaint.

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defendants or allege certain claims “do not merit good cause.”

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Carbajal v. Dorn, No. CV09-00283-PHX-DGC, 2010 WL 1489978, at *4

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(D. Ariz. April 13, 2010); see also In re W. States Wholesale

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Natural Gas Antitrust Litig., 715 F.3d 716, 737-38 (9th Cir.

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2013) (upholding district court’s denial of motion to amend

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because the moving parties had been aware of the facts and

Tactical decisions not to name certain

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theories supporting the amendment since the inception of the

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case).

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identifying the alleged new evidence obtained in discovery which

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motivated them to seek to amend their complaint prevents this

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Court from finding that Plaintiffs have met Rule 16’s good cause

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requirement. See e.g. (Bahamas) Ltd. v. Hempel, A/S, 2008 WL

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205267, at *2 (N.D. Cal. 2008) (denying under Rule 16 motion for

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leave to amend answer where motion unsupported by evidence for

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its assertions). As Defendants argue, the record in this case

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belies the existence of such new evidence.

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Plaintiffs’ counsels’ failure to submit a declaration

As to Plaintiffs’ change in case-law contention, in

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Chaudhry, the Ninth Circuit considered whether California’s

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denial of “pre-death pain and suffering damages is inconsistent

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with § 1983 in cases where an alleged violation of federal law

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caused the victims death.”

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noted that the Eastern District had in the past found that the

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law was consistent and thus acted as a prohibition on the

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recovery of pre-death pain and suffering damages.

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Venerable v. City of Sacramento, 185 F. Supp. 2d 1128, 1132-33

751 F.3d at 1103.

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The Ninth Circuit

Id. (citing

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(E.D. Cal. 2002)).

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practical effect of [the California provision] is to reduce, and

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often to eliminate, compensatory damage awards for the survivors

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of people killed by violations of federal law.”

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The Ninth Circuit thus held that “California’s prohibition

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against pre-death pain and suffering damages limits recovery too

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severely to be consistent with § 1983’s deterrence policy[, and]

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therefore does not apply to § 1983 claims where the decedent’s

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death was caused by the violation of federal law.”

The Ninth Circuit panel reasoned that “[t]he

Id. at 1104.

Id. at 1105.

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Chaudhry was decided while Plaintiffs’ appeal was pending.

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The Chaudhry decision strengthened the viability of a

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survival action for pain and suffering resulting from a Fourth

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Amendment violation.

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binding authority preventing Plaintiffs from requesting pre-death

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pain and suffering damages for Fourth Amendment violations.

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While Venerable, 185 F. Supp. 2d at 1132-33, held that such

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damages were not recoverable, district courts are not bound by

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other district court decisions.

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California had previously held that such damages were

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recoverable.

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(N.D. Cal. 1981) rev’d of on other grounds Peraza v. Delameter,

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722 F.2d 1455 (9th Cir. 1984).

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brought the claims they now seek to add and raised the argument

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that the Court should permit such damages.

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made a tactical decision not to bring a Fourth Amendment survivor

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claim seeking pre-death pain and suffering damages, and as a

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substitute framed the case as a wrongful death case focusing on

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loss of companionship.

However, prior to Chaudhry, there was no

Further the Northern District of

Guyton v. Phillips, 532 F. Supp. 1154, 1166-67

Thus, Plaintiffs could have

Instead, Plaintiffs

As stated above, tactical decisions do
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not warrant good cause.

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re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d at

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737-38.

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meet Rule 16’s good cause requirement and the Court need not

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reach the Rule 15 issues raised by this motion to amend.

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See Carbajal, 2010 WL 1489978, at *4; In

Plaintiffs are thus denied leave to amend for failure to

2.

Supplemental Jurisdiction

The claims over which this Court had original jurisdiction,

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Plaintiffs’ § 1983 claims, have been summarily adjudicated in

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Defendants favor.

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The only remaining matter before this Court,

Plaintiffs’ negligence claim, is a state law claim.

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The Court therefore considers sua sponte whether to continue

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exercising supplemental jurisdiction over the remaining state law

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negligence claim.

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999, 1001 n.3 (9th Cir.1997) (suggesting that a district court

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may decide sua sponte whether to continue exercising supplemental

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jurisdiction under 28 U.S.C. § 1367(c)(3) once all federal law

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claims have been dismissed); Retail Prop. Trust v. United Bhd. of

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Carpenters & Joiners of Am., 768 F.3d 938, 962 (9th Cir. 2014)

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(“In as much as only state claims remain, the district court may

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decide whether to continue to exercise supplemental jurisdiction

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over the state claims or send them back to state court, as

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appropriate.”).

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See Acri v. Varian Assocs., Inc., 114 F.3d

Under 28 U.S.C. § 1367(c)(3), a district court “may decline

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to exercise supplemental jurisdiction over a [state] claim”

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following dismissal of “all claims over which it has original

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jurisdiction . . . .”

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supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) should be

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informed by the values of economy, convenience, fairness, and

The decision whether to decline exercising

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comity as delineated by the Supreme Court in United Mine Workers

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of America v. Gibbs, 383 U.S. 715, 726 (1996).

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Court has stated, and [the Ninth Circuit has] often repeated,

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that in the usual case in which all federal-law claims are

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eliminated before trial, the balance of factors . . . will point

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toward declining to exercise jurisdiction over the remaining

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state-law claims.”

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and citation omitted); Curiel v. Barclays Capital Real Estate

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Inc., No. S–09–3074 FCD/KJM, 2010 WL 729499, at *1 (E.D. Cal.

“The Supreme

See Acri, 114 F.3d at 1001 (quotation marks

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2010) (stating “primary responsibility for developing and

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applying state law rests with the state courts” and declining to

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exercise supplemental jurisdiction after dismissal of the federal

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claims).

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The Court finds judicial economy would not be promoted by

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continuing to exercise supplemental jurisdiction over the

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negligence claim.

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Cir.1986) (stating that “[t]he district court, of course, has the

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discretion to determine whether its investment of judicial energy

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justifies retention of jurisdiction”).

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finds no compelling convenience or fairness factors weigh in

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favor of exercising supplemental jurisdiction.

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therefore declines to continue exercising supplemental

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jurisdiction over the remaining state claim under 28 U.S.C. §

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1367(c)(3), and this matter is dismissed without prejudice.

See Otto v. Heckler, 802 F.2d 337, 338 (9th

Furthermore, the Court

The Court

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II.

ORDER

For the reasons set forth above, the Court DENIES
Plaintiff’s Motion for Leave to File a FAC.
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The Court declines

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to exercise supplemental jurisdiction over Plaintiffs’ remaining

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negligence claim and the case is dismissed without prejudice.

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IT IS SO ORDERED.
Dated: July 29, 2016

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