Burkes v. County Of Monterey

Filing 30

ORDER by Magistrate Judge Howard R. Lloyd denying 26 Plaintiff's Motion for Leave to File a Third Amended Complaint.(hrllc2, COURT STAFF) (Filed on 2/3/2012)

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*E-FILED: February 3, 2012*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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No. C11-04952 HRL

MARK S. BURKES,

ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE A
THIRD AMENDED COMPLAINT

Plaintiff,
v.

[Re: Docket No. 26]

COUNTY OF MONTEREY,
Defendant.
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Plaintiff Mark S. Burkes, a former employee of defendant County of Monterey

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(County), sues for alleged constructive discharge and purported violation of his state and federal

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due process rights. Burkes filed his complaint in the Monterey County Superior Court, and the

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case proceeded there for more than a year. Over the course of the litigation, plaintiff amended

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his complaint twice. The original and first amended complaints alleged several state law claims

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for relief, including claims for intentional and negligent infliction of emotional distress. Then,

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several months before the case was set for trial, defendant moved for summary judgment on

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plaintiff’s emotional distress claims (among others), arguing that Burkes could not establish any

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facts to support them. Apparently in response to that motion, and over defendant’s vociferous

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objection, plaintiff successfully moved for leave to file a Second Amended Complaint (SAC).

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The SAC added, for the first time, a claim under 42 U.S.C. § 1983 for alleged violation of

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Burkes’ federal due process rights. The SAC also dropped several claims, including the ones

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for emotional distress. Having granted plaintiff’s motion to amend, the state court vacated

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defendant’s motion for summary judgment. Defendant answered the SAC and then removed

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the matter here, asserting federal question jurisdiction.

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Now before this court is plaintiff’s motion for leave to file a Third Amended Complaint.

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The issue here is not whether Burkes should be permitted to amend his pleading to add new

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facts, claims, theories, or parties. The question is whether he should be permitted to now

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resurrect the emotional distress claims that he voluntarily abandoned. The matter is suitable for

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determination without oral argument, and the February 7, 2012 hearing is vacated. CIV. L.R. 7-

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1(b). Upon consideration of the moving and responding papers, plaintiff’s motion is denied.
Rule 15(a) of the Federal Rules of Civil Procedure governs motions for leave to amend

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For the Northern District of California

United States District Court

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and provides that “[t]he court should freely give leave when justice so requires.” FED. R. CIV.

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P. 15(a)(2). That does not mean, however, that leave to amend must be granted automatically.

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Instead, the decision whether to grant leave to amend remains within the court’s sound

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discretion. Waits v. Weller, 653 F.2d 1288, 1290 (9th Cir. 1981). Leave need not be granted

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where the amendment would cause the opposing party undue prejudice, is sought in bad faith,

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constitutes an exercise in futility, or creates undue delay. Foman v. Davis, 371 U.S. 178, 182

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(1962).

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Burkes argues that permitting him to reinstate his abandoned claims will not prejudice

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defendant or cause any further delay in the action. True, the parties evidently conducted

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considerable discovery while the emotional distress claims were still in the case; and, case

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management deadlines were re-set by this court upon removal. Moreover, a plaintiff is not

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absolutely precluded from seeking to reallege, in subsequent amended pleadings, claims that

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were voluntarily dismissed. See, e.g., Southwest Forest Indus., Inc. v. Westinghouse Elec.

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Corp., 422 F.2d 1013, 1015 (9th Cir. 1970) (observing that the trial court had permitted plaintiff

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to amend its complaint to reinstate previously abandoned claims); Google, Inc. v. Affinity

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Engines, Inc., No. C05-0598JW, 2005 WL 2007888 at *7 (N.D. Cal., Aug. 12, 2005) (“[C]ourts

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may allow a plaintiff to reallege a voluntarily withdrawn claim.”).

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On the record presented, however, Burkes’ assertions as to his “good faith” in pursuing

that he wants to reinstate his abandoned claims—apparently, solely as a tactical

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gambit—because he is unhappy that defendant removed his lawsuit here. Describing the instant

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motion as a “counter-response to Defendant’s maneuvering,” (Reply at 3), plaintiff explains that

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“just as Defendant has changed its mind about the proper place for the matter to be litigated,

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namely this Court instead of the state court, Plaintiff has changed his mind about the theories of

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relief upon which he seeks compensation.” (Mot. at 7:2-5). Notably, in seeking the state

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court’s permission to file his SAC, and facing possible summary judgment, Burkes told that

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court that he wanted to add the § 1983 claim and to drop the emotional distress ones because

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For the Northern District of California

the requested amendment are not well taken. Indeed, plaintiff makes no bones about the fact

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United States District Court

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“[s]uch amendments essentially cure the defects in the First Amended Complaint as alleged in

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the County’s pending [summary judgment] motion, and therefore not only should streamline the

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litigation, but also settlement should be promoted in light of the County’s exposure to pay Mr.

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Burkes the additional damages provided by § 1983.” (Notice of Removal, Dkt. No. 1, Ex. F

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(Declaration of Gary E. Gray, Esq. (Rule 3.1324(b) at 2:7-12)). Having made a tactical

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decision to drop his emotional distress claims, Burkes now essentially argues to this court that

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he should be allowed to reallege them at his whim.

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Burkes disclaims any bad faith, arguing that “[t]he back and forth litigation of the matter

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is emblematic of the action/reaction of two parties and two advocates engaged in fierce

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litigation.” (Reply at 3). It appears to this court, however, that Burkes is picking and choosing

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relief, not based on any legitimate truth-seeking purpose, but on an apparent contentious “tit-

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for-tat” litigation strategy. While leave to amend is to be granted liberally when justice so

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requires, this court finds that justice does not require amendment under the circumstances

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presented here. To order otherwise would be to endorse tactical gamesmanship that is hardly in

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keeping with the policy of promoting a just, speedy, and inexpensive resolution of civil law

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suits under Fed. R. Civ. P. 1.

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Plaintiff’s motion for leave to file a Third Amended Complaint is denied.

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SO ORDERED.
Dated: February 3, 2012

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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

United States District Court

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5:11-cv-04952-HRL Notice has been electronically mailed to:

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Brian Everett Turlington

[e-mail]

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Dennis Gary McCarthy

[e-mail]

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Gary Ernest Gray

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

[e-mail]

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For the Northern District of California

United States District Court

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