Rocky Mountain Bank -v- Google, Inc.

Filing 53

ORDER GRANTING MEDIAPOSTS MOTION FOR RECONSIDERATION; GRANTING MEDIAPOST LIMITED INTERVENTION; DENYING MEDIAPOSTS MOTION TO UNSEALgranting in part and denying in part 49 Motion for Reconsideration re 49 MOTION for Reconsideration re 48 Order on Motion for Leave to File filed by MediaPost Communications (jwlc3, COURT STAFF) (Filed on 1/27/2010)

Rocky Mountain Bank -v- Google, Inc.

Doc. 53

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LAW OFFICES OF DALE K. GALIPO Dale K. Galipo, State Bar No. 144074 21800 Burbank Boulevard, Suite 310 Woodland Hills, California 91367 [phone] - Telephone [phone] - Facsimile Attorneys for Plaintiff MARYLON BOYD, Individually, and as Executor of the Estate of Cammerin Boyd LAW OFFICES OF VICKI I. SARMIENTO VICKI I. SARMIENTO, SBN 134047 333 N. Garfield Avenue Alhambra, California 91801 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] Attorneys for Plaintiffs ISABEL GONZALEZ, a minor by and through her Guardian Ad Litem, Isela Gonzalez, and KANANI BOYD, a minor by and through her Guardian Ad Litem, Kamilah Boyd UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CASE NO.: CV 04-5459-MMC MARYLON BOYD, individually and as Executor of the Estate of CAMMERIN BOYD, ISABEL GONZALEZ, a minor by and through her Guardian Ad Litem, Isela Gonzalez, and KANANI BOYD, a minor by and through her PLAINTIFFS' JOINT NOTICE OF MOTION AND MOTION FOR LEAVE OF Guardian Ad Litem, Kamilah Boyd, COURT FOR PLAINTIFFS TO FILE AN AMENDED COMPLAINT; Plaintiffs, MEMORANDUM OF POINTS AND vs. AUTHORITIES AND DECLARATION OF DALE K. GALIPO IN SUPPORT CITY AND COUNTY OF SAN FRANCISCO, THEREOF HEATHER J. FONG, WILLIAM ELIEFF, GREGORY KANE, JAMES O'MALLEY, TIMOTHY PAINE, STEVEN STEARNS, and DOES 1 to 10, inclusive, Date of Hearing: December 22, 2006 Time of Hearing: 9:00 a.m. Defendants. Courtroom No: 7

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

­1­ MOTION TO AMEND COMPLAINT
Dockets.Justia.com

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PLEASE TAKE NOTICE that on December 22, 2006 at 9:00 a.m., or as soon thereafter as this matter may be heard in Courtroom 7 of the above-entitled Court, located at 450 Golden Gate Avenue, in the City of San Francisco, California, the Plaintiffs, will and hereby do move this Court for an Order for Leave of Court for Plaintiffs to File an Amended Complaint.
Plaintiffs and defendants have stipulated to allow amendment to the complaint and to deem the defendants' answer to the plaintiffs' original complaint the answer to the plaintiffs' first amended complaint. Plaintiffs make this motion to the Court for an order granting leave to amend the complaint to add an eighth cause of action for battery. A copy of the proposed First Amended Complaint is attached hereto as Exhibit "1." A copy of the stipulation to amend the complaint is attached hereto as Exhibit "2." This motion is being made pursuant to Federal Rules of Civil Procedure Sections 7(b) and 15(a) and on the grounds that such an amendment to the complaint is necessary to preserve the rights and claims of the plaintiffs and would serve the interests of justice. Furthermore, allowing plaintiffs to amend the complaint would not cause undue delay or prejudice defendants, as the facts supporting the current contentions and causes of action in the complaint also support a battery cause of action against defendants OFFICERS WILLIAM ELIEFF, GREGORY KANE, JAMES O'MALLEY, TIMOTHY PAINE, STEVEN STEARNS, and DOES 5 through 10. Specifically, the allegations of shots fired striking the decedent and the decedent's vehicle support the battery cause of action. The shots fired at the decedent, by the defendants included shots fired at the decedent while the decedent was in his vehicle and shots fired at the decedent after the decedent exited his vehicle. This motion is based on this notice of motion, the attached memorandum of points and authorities, the attached Declaration of Dale K. Galipo, upon the proposed First Amended Complaint, the stipulation by plaintiffs and defendants, the pleadings on file herein, and upon such other oral and documentary evidence as may be presented at the time of the hearing. /// ///

­2­ MOTION TO AMEND COMPLAINT

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I hereby attest that I have on file all holograph signatures for any signatures indicated by a "conformed" signature (/S/) within this efiled document.

LAW OFFICES OF DALE K. GALIPO

DATE: November 13, 2006

/S/ _ DALE K. GALIPO Attorneys for Plaintiff MARYLON BOYD, Individually, and as Executor of the Estate of Cammerin Boyd

LAW OFFICES OF VICKI I. SARMIENTO

Dated: November 13, 2006

/S/ _ VICKI I. SARMIENTO Attorneys for Plaintiffs ISABEL GONZALEZ, a minor by and through her Guardian Ad Litem, Isela Gonzalez, and KANANI BOYD, a minor by and through her Guardian Ad Litem, Kamilah Boyd

­3­ MOTION TO AMEND COMPLAINT

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This case arises out the shooting death of Cammerin Boyd, which occurred on May 5, 2004, at Larch Way in the City of San Francisco and in front of numerous witnesses. The decedent was an African-American male, and a double amputee with prosthetic legs below the knees. It is the plaintiffs' contention that Mr. Boyd was unarmed and posed no immediate threat of death or serious bodily injury to the officers or anyone else at the time he was shot and killed by the defendants. Plaintiffs further contend that, Mr. Boyd had voluntarily surrendered to the police and had his hands raised when he was shot. The defendants, Officers WILLIAM ELIEFF, GREGORY KANE, JAMES O'MALLEY, TIMOTHY PAINE, STEVEN STEARNS, and DOES 5 through 10 engaged the decedent in a pursuit, which ended at Larch Way, a residential area of the City of San Francisco. The defendants fired rounds at Mr. Boyd while he was in his vehicle and after he exited his vehicle. Both Mr. Boyd and Mr. Boyd's vehicle was struck by the gunfire, supporting the proposed battery cause of action. Plaintiffs now move to amend the complaint pursuant to Rule 15(a) and Rule 15(c) Federal Rules of Civil Procedure. Plaintiffs seek to add "battery" as an eighth cause of action to the complaint. The battery cause of action alleges the same underlying facts and involves the same parties, but alleges an alternate theory of wrongful death under state law. Plaintiff Marylon Boyd's new counsel has substituted in as attorney of record for Ms. Boyd, and has recently taken the defendants' depositions and believes this proposed amendment is appropriate under the facts and related law. Plaintiffs propose no other amendments to the complaint and believe the proposed amendment will not cause any undue delay or prejudice to the defendants. Plaintiffs and defendants have stipulated to allow amendment to the complaint and to deem the defendants' answer to the plaintiffs' original complaint the answer to the plaintiffs' first amended complaint. ///

­4­ MOTION TO AMEND COMPLAINT

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II. THERE IS A STRONG POLICY PERMITTING AMENDMENTS TO PLEADINGS Federal Rules of Procedure Rule 15(a) requires that "leave shall be freely given when justice so requires." And according to the Court in Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990), the policy favoring amendments to pleadings is to be applied with "extraordinary liberality." In Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993), the court held that, "justifying reasons must be apparent for denial of a motion to amend." Further, the Court in Union Pacific Railroad Co. v. Nevada Power Co., 950 F.2d 1129, 1432 (9th Cir. 1991), held that, "Amendments seeking to add claims are to be granted more freely than amendments adding parties." Moreover, the party seeking amendment need only establish the reason why amendment is required. The burden then shifts to the party opposing the motion to convince the Court that "justice" requires denial of the motion. Shipner v. Eastern airlines, Inc., 868 F.2d 401, 406-407 (5th Cir. 1989). Plaintiffs contend that the defendants shot the decedent, Cammerin Boyd, and shot at his vehicle, with intent and without justification. The operative pleading as it stands is insufficient in regards to a battery cause of action, and therefore, justice requires an amendment to the complaint to preserve the plaintiffs' rights in this matter. Furthermore, plaintiffs' request for leave to amend the complaint is not being made in bad faith, will not cause undue delay, and will not unduly prejudice the defendants. III. PLAINTIFFS' REQUEST FOR LEAVE TO AMEND SHOULD BE GRANTED AS THE REQUEST IS NOT MADE IN BAD FAITH AND WILL NOT UNDULY PREJUDICE THE DEFENDANTS Although the decision of whether to allow amendment is within the discretion of the trial court, FRCP 15 states that leave shall be freely given "when justice requires." Froman v. Davis, 371 U.S. 178 (1962) (Citing FRCP 15). Courts, in turn, have concluded that the

­5­ MOTION TO AMEND COMPLAINT

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statute's language favoring amendments to pleadings should be applied with extreme liberality. DCD Programs, LTD. v. Leighton, 833 F.2d 183, 186 (1987) (Citing United States v. Webb, 655 F.2d 977 at 979). In determining whether a request for leave to amend is "just" and allowable, courts have developed a four-prong test. Courts will generally grant leave to amend, unless an amendment is sought in bad faith, an amendment will cause undue delay, an amendment will prejudice the opposing party, or an amendment constitutes an exercise in futility. DCD Programs, 833 F.2d 183 at 186. Based on the facts set forth above, plaintiffs respectfully request leave to amend the complaint. The proposed amendment is not made in bad faith since the proposed amendment is supported by facts alleged in the current complaint. The proposed amendment will not cause undue delay or any real prejudice to the defendants. Plaintiffs and defendants have stipulated to the proposed amendment. It is in the interest of justice for the Court to permit the amendment as this will not cause undue delay of the case or prejudice the defendants. Moreover, to justify denial of leave to amend, the prejudice must be substantial. Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). While the original complaint does not specifically identify battery as an independent cause of action, the facts alleged in the original complaint and existing causes of action arising under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments to the U.S. Constitution clearly support battery as a viable cause of action. Plaintiffs have been pursuing claims that allege that defendants caused a harmful or offensive touching of the decedent without his consent, by shooting the decedent and the decedent's vehicle, without justification. As such, defendants' burden in defending against a battery cause of action is not a departure from their defense of plaintiffs' existing causes of action. Accordingly, the proposed amendment to the complaint will not prejudice the defendants or cause any undue delay in the prosecution of the case to a degree that warrants the denial of leave to amend the complaint. Finally, amending the complaint to add a battery cause of action would not be futile. The allegations previously made by the plaintiffs provide a factual basis to allege a cause of

­6­ MOTION TO AMEND COMPLAINT

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action for battery. Plaintiffs' proposed amendment is in the interest of justice and clearly falls within the intent of Rule 15 (a) and 15 (c) of the Federal Rules of Civil Procedure. In essence, the plaintiffs are not alleging new facts, but rather, an alternate theory of recovery under state law. IV. NECESSITY OF MOTION As set forth in the Declaration of Dale K. Galipo, plaintiffs sought a stipulation to the amendments from defense counsel Blake P. Loebs, attorney for all the named defendants. Defense counsel agreed to stipulate to adding an Eighth Cause of Action for battery. It is unclear if a motion to amend the complaint is necessary given the stipulation to amend, but Federal Rules of Civil Procedure 15(a) supports the filing of this motion. V. CONCLUSION Plaintiffs respectfully request that the Court grant this motion and grant leave to plaintiffs to amend the complaint as set forth in this motion, and in the proposed First Amended Complaint filed concurrently herewith. A copy of the proposed First Amended Complaint is attached hereto as Exhibit "1." LAW OFFICES OF DALE K. GALIPO DATE: November 13, 2006 /S/ _ DALE K. GALIPO Attorneys for Plaintiff MARYLON BOYD, Individually, and as Executor of the Estate of Cammerin Boyd

LAW OFFICES OF VICKI I. SARMIENTO DATE: November 13, 2006 /S/ _ VICKI I. SARMIENTO Attorneys for Plaintiffs ISABEL GONZALEZ, a minor by and through her Guardian Ad Litem, Isela Gonzalez, and KANANI BOYD, a minor by and through her Guardian Ad Litem, Kamilah Boyd
­7­ MOTION TO AMEND COMPLAINT

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DECLARATION OF DALE K. GALIPO I, Dale K. Galipo, declare as follows: 1. I am an attorney licensed to practice law in all Court of the State of California

and in the Northern District. I have personal knowledge of the facts contained herein, and if called to testify I could and would competently testify thereto. 2. On or about June 1, 2006, my office substituted in as attorney of record for the

plaintiff Marylon Boyd. 3. I have reviewed the instant file and upon my review, discovered that defendants

OFFICERS ELIEFF, KANE, O'MALLEY, PAINE, STEARNS, and DOES 5 through 10, made unconsented and unjustified physical contact with the decedent, when they shot the decedent and at the decedent's vehicle, causing injury and damages to the decedent before his death and also causing the death of the decedent. 4. I believe that a viable battery cause of action exists against the defendants due to

the unconsented and unjustified physical contact with the decedent related to the shooting and killing of the decedent. 5. Amendment of the complaint would not result in prejudice against the

defendants, as the complaint currently alleges causes of action for violation of the decedent's and the plaintiffs' civil rights for the unconsented and unjustified, harmful contact with the decedent, including the wrongful shooting of the decedent. The allegation of an unconsented and unjustified, harmful physical contact of the decedent is not a new allegation to the defendants. 6. The proposed amendment of the plaintiffs' complaint would serve the interests

of justice in preserving the plaintiffs' rights under state law. Moreover, the amendment will not result in a delay of the trial date or any additional discovery. 7. "1." A copy of the proposed First Amended Complaint is attached hereto as Exhibit

­8­ MOTION TO AMEND COMPLAINT

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8.

Defense counsel Blake Loebs agreed to stipulate to allow amendment to the

complaint and to deem the defendants' answer to the plaintiffs' original complaint the answer to the plaintiffs' first amended complaint. 9. A copy of the stipulation signed by plaintiffs' counsel and Mr. Loebs is attached

hereto as Exhibit "2."

I declare under penalty of perjury that the foregoing is true and correct pursuant to the laws of the United States.

DATE: November 13, 2006

/S/ Dale K. Galipo

_

­9­ MOTION TO AMEND COMPLAINT