Doe et al v. City and County of San Francisco et al

Filing 92

ORDER ON MOTION TO AMEND by Judge Thelton Henderson denying 42 Motion to Amend/Correct(tehlc2, COURT STAFF) (Filed on 12/1/2011)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 JANE DOE and ANNE RASKIN, 6 7 8 Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO, et al., NO. C10-04700 TEH ORDER DENYING MOTION TO AMEND THE COMPLAINT 9 Defendants. 11 For the Northern District of California United States District Court 10 This matter comes before the Court on November 28, 2011, on a motion to amend the 12 complaint filed by Plaintiffs Jane Doe and Anne Raskin (“Plaintiffs” or “Doe” and 13 “Raskin”). For the reasons set forth below, the motion is DENIED. 14 15 BACKGROUND 16 Plaintiffs, employees of Defendant City and County of San Francisco Department of 17 Emergency Communications (“DEC”), contend that there has been a longstanding culture of 18 bullying, hazing, and female-on-female gender-based harassment on the midnight shift of the 19 DEC 911 dispatch. Following a long and intricate history of conflict between Plaintiff Doe 20 and her supervisors, named as Defendants in this case, an incident involving Doe’s personal 21 email account brought the discord to a head in the fall and winter of 2009. 22 DEC provides a bank of computers for use by employees on their breaks, on which 23 employees may check personal email and use the internet for non-work-related reasons, so 24 long as they do not use the computers for any improper purpose. In October of 2009, 28 25 emails from Jane Doe’s personal Yahoo! email account were printed by Defendants and 26 submitted to the DEC’s human resources department for review, based on (according to 27 Defendants) the concern that the emails may contain confidential DEC personnel 28 1 information, improperly disclosed by Doe to outside parties. According to Defendants, these 2 emails were found by one of the Defendants when Doe left them open in multiple minimized 3 windows on the shared workplace computer. According to Doe, the emails printed by 4 Defendants were not open in minimized windows, but found by Defendant Madsen, who Doe 5 claims searched through her inbox, sent mail, and folders to find emails containing 6 potentially incendiary communications. 7 In December of 2009, Doe was informed of the emails received by human resources, 8 during the course of their investigation (which ultimately did not find the emails violative of 9 DEC policy). On October 14, 2010, Doe and Raskin (whose writings were also contained in 11 Stored Communications Act, California’s whistleblower statutes, invasion of privacy, For the Northern District of California United States District Court 10 the emails, as she had corresponded with Doe) filed suit, alleging violations of the Federal 12 intentional infliction of emotional distress, as well as several California Fair Employment 13 and Housing Act violations relating to gender-based discrimination, sexual harassment, and 14 retaliatory conduct. On February 2, 2011, this Court issued an Order For Pretrial 15 Preparation, specifying a trial date of January 10, 2011, with non-expert discovery to be 16 concluded by September 26, 2011, and the last day to file dispositive motions in the case set 17 as October 17, 2011. On October 17, Defendants filed a motion for summary judgment, and 18 Plaintiffs filed the instant motion to amend their complaint. 19 20 LEGAL STANDARD 21 Under Federal Rule of Civil Procedure 15(a)(2), “a party may amend its pleading only 22 with the opposing party's written consent or the court's leave. The court should freely give 23 leave when justice so requires.” Here, the Defendants oppose the motion, therefore the 24 Court’s leave is required. 25 In the Ninth Circuit, “this policy is to be applied with extreme liberality.” Morongo 26 Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990). However, there are 27 limits to the circumstances under which a complaint may be amended, and leave to amend 28 may be denied where “apparent or declared” evidence of “undue delay, bad faith or dilatory 2 1 motive on the part of the movant, repeated failure to cure deficiencies by amendments 2 previously allowed, undue prejudice to the opposing party by virtue of allowance of the 3 amendment, [or] futility of amendment” is found. Foman v. Davis, 371 U.S. 178, 182 4 (1962). 5 The most important consideration is prejudice to the nonmoving party, which may 6 arise from a need to reopen discovery after the addition of new claims or parties. Eminence 7 Capital, LLC v. Aspeon, 316 F.3d 1048, 1052 (9th Cir. 2003); Lockheed Martin Corp. v. 8 Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999). When the motion to amend is 9 made after the close of discovery and near the time of trial, the delay is considered especially 11 itself is not dispositive, it is relevant, particularly when no adequate justification for the delay For the Northern District of California United States District Court 10 prejudicial. Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir.1994). Though undue delay by 12 has been provided. Lockheed, 194 F.3d at 986. New legal theories or re-assessments of 13 known facts will not suffice to justify such a delay: denial of a motion to amend is 14 appropriate “where the movant presents no new facts but only new theories and provides no 15 satisfactory explanation for his failure to fully develop his contentions originally.” Bonin v. 16 Calderon, 59 F.3d 815, 845 (9th Cir. 1995). 17 18 DISCUSSION 19 Plaintiffs wish to amend the complaint to clarify the pleadings, but the primary thrust 20 of the proposed amendment is the addition of a new claim: Plaintiffs wish to bring a cause of 21 action against Madsen and the City and County of San Francisco under 42 U.S.C. section 22 1983, alleging violation of Doe’s Fourth Amendment right to be free from unreasonable 23 search and seizure. This claim is based upon the same facts as the current invasion of 24 privacy claim–the accessing of Doe’s email by Madsen and the gathering and printing of 25 Doe’s emails. Much like the invasion of privacy claim, the new claim would require that 26 Plaintiffs prove Madsen intentionally intruded into an area in which Doe had a legitimate 27 expectation of privacy. Unlike the invasion of privacy claim, a claim under section 1983 28 requires further proof that Madsen did so while acting under color of law. Assuming the 3 1 facts supporting the latter element are Madsen’s role as an employee of the local government 2 and the attendant capacity in which she was acting when she accessed the email, it would 3 seem that the crux of the new cause of action is the same as that of the original invasion of 4 privacy claim. Specifically, the extent and nature of Madsen’s contact with Doe’s email. 5 It is the facts surrounding this key issue that Plaintiffs argue justify amendment of the 6 complaint at this stage in the proceedings. Plaintiffs moved to amend the complaint on 7 October 17, 2011, the last day for motions to be filed under the pretrial scheduling order in 8 this case and the same day Defendants filed their motion for summary judgment. Defendants 9 objected to the motion to amend, arguing that it was untimely and improper in that the 11 justified the delay by citing the deposition of Defendant Madsen, held by stipulation two For the Northern District of California United States District Court 10 amendments sought are not based on any newly discovered facts or evidence. Plaintiffs have 12 days past the September 26 cut-off date for discovery (as well as the report of Plaintiffs’ 13 computer forensics expert, Winston Krone, which was prepared on November 17, 2011)1. 14 Plaintiffs argue that Ms. Madsen’s deposition testimony contained admissions regarding her 15 search of Jane Doe’s email inbox, and that this testimony constitutes new information 16 previously unavailable to the Plaintiffs. 17 However, the information that the printed emails resulted from a full search of Doe’s 18 email (rather than simply having been found by chance, already open and minimized on the 19 shared computer) cannot possibly be construed as new. This has been Jane Doe’s contention 20 from the beginning, and is contained in the factual allegations of the original complaint. Doe 21 has consistently claimed that Madsen’s access to her email was extensive and involved a 22 lengthy search of not only the inbox, but the sent mail folders and other saved messages as 23 well. Contrary to Plaintiffs’ assertions, Madsen’s deposition testimony does not appear to 24 1 Plaintiffs argue that the Krone report provides further new information, revealing that 25 there was some deletion of relevant internet history and files from the period of the email incident. They contend the missing internet history is evidence of Madsen’s having searched 26 the inbox, and subsequently attempted to cover up her actions. While this may be, the Krone report was prepared on November 17th, 2011, exactly one month after the motion to amend 27 was filed. Though the Krone report may contain new information, this new information could not rationally be the basis of the motion to amend. as it does not appear to have been in 28 Plaintiffs’ possession at the time the motion was filed. 4 1 confirm this version of events (indeed, Madsen repeatedly denies having accessed the inbox). 2 As such, the only new information offered on this topic by the Madsen deposition is that 3 Madsen denies Plaintiffs’ claims about the extent of her access, and insists she merely 4 opened minimized windows. Regardless of the plausibility of either version, it is clear that 5 there has been no new revelation about the extend of Madsen’s search on which a new cause 6 of action should be based.2 7 Given the potential prejudice to the Defendants inherent in amending the complaint to 8 add a new cause of action at this point–just over six weeks before trial, after the close of 9 discovery, and following the filing of a motion for summary judgment–and the lack of 11 good faith inherent therein, amendment at this juncture is not appropriate. For the Northern District of California United States District Court 10 adequate justification for the Plaintiffs’ delay in moving to amend and the apparent lack of 12 13 CONCLUSION 14 For the reasons detailed above, the motion to amend the complaint is DENIED. 15 16 17 IT IS SO ORDERED. 18 19 Dated: 12/01/2011 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT 20 21 22 23 24 25 2 Further underscoring the idea that the facts giving rise to the Fourth Amendment claim are not new is the report of Terrence Daniel documenting the investigation into the 26 email incident conducted at DEC. The report notes that when Ms. Doe was first informed of her emails having been passed on to human resources, she “was upset and began by saying 27 this is a violation of her fourth amendment rights.” [sic]. (Sealed Ex. M to Decl. Of Lawrence Hecimovich in Supp. Of Defs.’ Mot. For Summ. J. at 4, Doe et al. v. City and 28 County of San Francisco et al., No. 10-04700 TEH (N.D. Cal. Oct. 19, 2011) (No. 47)). 5

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