Luong et al v. City and County of San Francisco Police Department

Filing 67

ORDER RE FIRST AMENDMENT CLAIM. Signed by Judge Maria-Elena James on 3/22/2013. (mejlc2, COURT STAFF) (Filed on 3/22/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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KIMBERLY LUONG, et al.,
Plaintiffs,

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v.

No. C 11-05661 MEJ
ORDER RE FIRST AMENDMENT
CLAIM

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SF CITY & COUNTY, et al.,
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For the Northern District of California

UNITED STATES DISTRICT COURT

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Defendants.
_____________________________________/
During the February 21, 2013 pre-trial conference, the parties raised an issue regarding

13 Plaintiffs’ Section 1983 claim premised on violation of the First Amendment. Plaintiffs contend that
14 they have plead a First Amendment retaliation claim based on the Defendant Officers’ reaction to
15 Plaintiffs’ verbal objections and comments during the interaction with the Officers. Defendants,
16 however, contend that the only First Amendment-based claim that Plaintiffs plead was based on
17 Plaintiffs’ right to videotape the Officers and that Plaintiffs never asserted a First Amendment
18 retaliation claim or alleged facts to support or otherwise suggest that they intended to proceed on
19 such a theory. At the pre-trial conference, the Court took the matter under submission. After
20 thoroughly reviewing the record in this case, including Plaintiffs’ Second Amended Complaint, the
21 parties’ joint Case Management Statement, and the parties’ summary judgment briefs, the Court
22 agrees with Defendants that Plaintiffs failed to assert any First Amendment retaliation claim. As
23 Defendants point out, Plaintiffs’ Second Amended Complaint contains a single line asserting that
24 Defendants deprived Plaintiffs of the right to freedom of speech under the First Amendment. Sec.
25 Amend. Compl. at ¶ 17(c), Dkt. No. 21. The Complaint, however, does not contain facts alleging that
26 Defendants’ actions were in response to or were otherwise motivated by Plaintiffs’ comments during
27 the incident. Further, Defendants moved for summary judgment on the First Amendment claim based
28 on the theory that Plaintiffs had a right to videotape. In their response, Plaintiffs refuted Defendants’

1 argument, but did not indicate that the scope of their First Amendment claim went beyond that theory
2 to encompass a retaliation-based claim. See Pl. Opp. at 19-20, Dkt. No. 26. Finally, the Court’s
3 summary judgment order expressly stated that Vicky and Kimberly Luong’s Section 1983 excessive
4 force claim, as well as their state law claims for assault, battery, negligence, and IIED, were to
5 proceed to trial, but summary judgment was granted as to each of Plaintiffs’ other claims. Dkt. No.
6 35. If there was any dispute as to whether a First Amendment retaliation claim was in play, Plaintiffs
7 had ample time to raise that issue before the pre-trial conference. As it stands, the Court agrees with
8 Defendants that any First Amendment retaliation claim was not properly plead and thus Defendants
9 were not on notice of any such claim and would be unfairly prejudiced if forced to defend it against
10 on the eve of trial. For the above reasons, the Court further denies Plaintiffs’ oral request for leave to

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For the Northern District of California

UNITED STATES DISTRICT COURT

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IT IS SO ORDERED.

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15 Dated: March 22, 2013
_______________________________
Maria-Elena James
United States Magistrate Judge

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