Kenney v. San Diego, City of et al

Filing 344

ORDER: Plaintiff's Motion for Leave to Amend the First Amended Complaint (Dkt # 320 ) and Plaintiff's "Ex Parte Motion to Substitute 'Doe' Defendants & Motion for Clarification on Whether These Substitutions May Supersede & Replace His Motion To Amend The First Amended Complaint" (Dkt # 321 ) are denied. Signed by Judge William Q. Hayes on 8/25/2015. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN B. KENNEY,

CASE NO. 13cv248 WQH (JLB)

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ORDER

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Plaintiff,
vs.
THE CITY OF SAN DIEGO &
FEDERAL & PRIVATE
CONTRACTOR INTELLIGENCE
COMMUNITY AND SECURITY
POLICE - STATE INDUSTRIAL
COMPLEX CONSPIRATORS, SAN
DIEGO POLICE DEP’T, (SDPD)..., et
al.,

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Defendants.

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HAYES, Judge:
The matters before the Court are Plaintiff’s Motion for Leave to Amend the First

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Amended Complaint (ECF No. 320) and Plaintiff’s “Ex Parte Motion to Substitute
‘Doe’ Defendants & Motion for Clarification on Whether These Substitutions May
Supersede & Replace His Motion To Amend The First Amended Complaint” (ECF No.
321).
Background
On January 30, 2013, Plaintiff John B. Kenney, proceeding pro se, filed a
Complaint in this Court. (ECF No. 1). On September 20, 2013, the Court granted in
part and denied in part the motion to dismiss the Complaint filed by Defendants City

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of San Diego (“City”), San Diego Police Department (“SDPD”), William Lansdowne,

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Jerry Sanders, Scott Thompson, Kaseyelee Lawrence, David Stum, and Jan Goldsmith

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(collectively, “City Defendants”). (ECF No. 20). In the same Order, the Court granted

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the motion to dismiss filed by the San Diego Sheriff’s Department (“Sheriff’s

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Department”). Id.

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On October 21, 2013, Plaintiff filed a First Amended Complaint. (ECF No. 21).

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On January 28, 2014, the Court granted the motions to dismiss portions of the First

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Amended Complaint filed by the City Defendants and the Sheriff’s Department. (ECF

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No. 33). In the January 28, 2014 Order, the Court listed nine causes of action against

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certain City Defendants which were not dismissed. See id. at 22-23.

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On June 30, 2014, the Court issued an Order which dismissed claims against

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certain Defendants without prejudice and stated, “[a]ny further amendment or

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supplement to the operative pleading must be done by filing a motion for leave to

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amend the First Amended Complaint, accompanied by a copy of the proposed amended

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pleading, which shall be entitled ‘Second Amended Complaint.’” (ECF No. 228 at 11).

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On July 21, 2014, the Court issued an Order granting Plaintiff an extension of

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time of 90 days to file a motion for leave to amend the First Amended Complaint. (ECF

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No. 246).

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On October 20, 2014, Plaintiff filed an amended complaint which was stricken

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by the Court on October 21, 2014 because the court had not granted leave to file the

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amended complaint. (ECF No. 286). The Court stated “Per Order, [ECF No. 279],

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‘[a]ny further amendment [to] the First Amended Complaint must be done by filing a

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motion for leave to amend the First Amended Complaint, accompanied by a copy of the

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proposed amended pleading....’” Id.

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On October 27, 2014, Plaintiff filed an Ex Parte Motion for Leave to Amend the

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First Amended Complaint. (ECF No. 287). On January 15, 2015, the Court issued an

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Order denying Plaintiff’s Ex Parte Motion for Leave to Amend (ECF No. 287), because

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“[t]his Court has previously ruled on the matters presented in the FAC” and “Plaintiff
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has not shown good cause to support the filing of the proposed SAC in this case.” (ECF

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No. 294).

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On July 17, 2015, Plaintiff filed the Motion for Leave to Amend (ECF No. 20)

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and the “Ex Parte Motion to Substitute ‘Doe’ Defendants & Motion for Clarification

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on Whether These Substitutions May Supersede & Replace His Motion To Amend The

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First Amended Complaint” (ECF No. 321). On July 20, 2015, Defendants City of San

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Diego, San Diego Police Department, Scott Thompson, KaseyLee Lawrence, and David

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Stum filed a response in opposition to the “Ex Parte Motion to Substitute ‘Doe’

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Defendants & Motion for Clarification on Whether These Substitutions May Supersede

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& Replace His Motion To Amend The First Amended Complaint.” (ECF No. 322). On

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August 10, 2015, the same Defendants filed a response in opposition to Plaintiff’s

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Motion for Leave to Amend. (ECF No. 328).

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I.

Plaintiff’s Motions

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Plaintiff moves this court to amend his complaint “to clarify the following SDPD

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... officers: David Mitchell, ... Matt Koerber, ...Kevin Armentano, ... Steven Eraca, ...

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James Milano, ... Rodolphe Sinte-Agathe, ... Craig Shumate, ... Daniel Dierdorff, ... as

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well as Erik Valdez....” (ECF No. 320-1 at 2). Plaintiff requests this Court “grant his

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Motion to Substitute Defendants in lieu of Motion to Amend, and Substitute these

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names for previous “doe” Defendants.” (ECF No. 321 at 7). Plaintiff requests that he

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“be permitted to submit these Substitutions for “Doe” Defendants: SDPD ... officers:

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David Mitchell, ... Matt Koerber, ...Kevin Armentano, ... Steven Eraca, ... James

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Milano, ... Rodolphe Sinte-Agathe, ... Craig Shumate, ... Daniel Dierdorff, ... as well as

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Erik Valdez....” (ECF No. 321 at 1-2). “All of these newly-Discovered names pertain

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to the incidents already alleged in FAC on 10/14/2011, except for Daniel Dierdorff,

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who has been named as involved with the 3/24/3012 incident, also already alleged in

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FAC. None of the “facts” or allegations are changed in any other way, other than to add,

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amend &/or substitute or replace these names where before Plaintiff knew no names,

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but Defendants have know –and withheld- since they were properly & timely noticed
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in CLERB complaints in late 2011, or early 2012.” Id. “Moreover, through the

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Discovery process it has become apparent, that just as he has so stated in his allegations,

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the Federal Bureau of Investigation (The FBI) was indeed working in conspiracy with

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COSD & SDPD, among others, to target, slander & harass Plaintiff. Ergo, Plaintiff

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respectfully motions this Court to have said FBI Defendants added back on as

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Defendants in instant case.” Id.

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Contentions

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Plaintiff contends that he has good cause and has been diligently pursuing

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discovery pursuant to the federal rules of civil procedure. Plaintiff contends that “he

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can now more accurately ascertain which of these newly identified defendants were

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involved.” (ECF No. 321 at 4). Plaintiff contends that Defendants will not suffer

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undue prejudice because “[a]ll allegations and explanations of the various incidents

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remain exactly as they were in the original, only recently, and long delayed, Discovered

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names will be “amended” &/or “substituted” for mistakenly misunderstood police

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officers before.” Id. at 6. Plaintiff contends that “[t]he newly-Discovered, thus

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newly-named []Defendants do nothing to disturb the original ‘facts’ & allegations in the

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FAC, and their names are already well-known to Defendants and in their possession.”

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Id.

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Defendants contend that Plaintiff’s improperly noticed and untimely Ex Parte

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Motion should be denied. Defendants contend that Plaintiff unduly delayed in seeking

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to amend his complaint or substitute Doe defendants. Defendants contend that the

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proposed new defendants were first identified to Plaintiff as witnesses in the City’s

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Initial Rule 26 Disclosure on November 7, 2014, over eight months ago. Defendants

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contend that the proposed new defendants were again identified to Plaintiff in a letter

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dated March 6, 2015, over four months ago. Defendants contend that Plaintiff has had

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this information for many months, but failed to explain why he waited until after the

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close of discovery and a few weeks before pre-trial motions are due to file this motion.

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Defendants contend that Plaintiff has failed to establish any good cause to excuse his
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undue delay in this matter, and this motion should be denied. Defendants contend that

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Plaintiff’s proposed second amended complaint does not correct any of the deficiencies

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in the earlier versions of the complaint, asserts the very same causes of action that were

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earlier dismissed, and provides no new factual allegations that would justify their

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reassertion. Defendants contend that Plaintiff continues to plead the same allegations

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that the Court previously struck and previously dismissed, as well as the same parties

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the Court previously dismissed for improper joinder. Defendants further contend that

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the proposed new defendants would suffer extreme prejudice should they be added to

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this case at this late stage. Defendants contend that discovery closed on July 13, 2015

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and the proposed defendants would be precluded from participating in discovery.

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Defendants contend that the proposed defendants “would essentially be precluded from

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filing any pre-trial motions that could resolve some or all of the issues and claims

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against them, as those motions are due on August 14, 2015.” (ECF No. 322 at 12).

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IV.

Discussion

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Motions for leave to amend are governed by Rule 15. Motions to amend a

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complaint to substitute a named defendant for a Doe defendant are also governed by

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Rule 15. See Butler v. Robar Enterprises, Inc., 208 F.R.D. 621, 622 (C.D. Cal. 2002)

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(“Butler references both Rule 15 and Federal Rules of Civil Procedure, Rule 21....

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However, motions to amend a complaint to substitute a named defendant for a Doe

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defendant are governed by Rule 15.”). Federal Rule of Civil Procedure 15 mandates

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that leave to amend “be freely given when justice so requires.” Fed. R. Civ. P. 15(a).

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In determining whether to allow an amendment, a court considers whether there is

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“undue delay,” “bad faith,” “undue prejudice to the opposing party,” or “futility of

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amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Not all of the [Foman]

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factors merit equal weight.... [I]t is the consideration of prejudice to the opposing party

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that carries the greatest weight.” Eminence Capital, 316 F.3d at 1052 (citation omitted).

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“The party opposing amendment bears the burden of showing prejudice.” DCD

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Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). “Absent prejudice, or
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a strong showing of any of the remaining Foman factors, there exists a presumption

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under Rule 15(a) in favor of granting leave to amend.” Eminence Capital, LLC v.

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Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003).

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Plaintiff seeks to substitute “SDPD ... officers: David Mitchell, ... Matt Koerber,

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...Kevin Armentano, ... Steven Eraca, ... James Milano, ... Rodolphe Sinte-Agathe, ...

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Craig Shumate, ... Daniel Dierdorff, ... as well as Erik Valdez.” (ECF No. 321 at 1).

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Plaintiff asserts that “[a]ll of these newly-Discovered names pertain to the incidents

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already alleged in FAC on 10/14/2011, except for Daniel Dierdorff, who has been

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named as involved with the 3/24/3012 incident, also already alleged in FAC.” Id. at 2.

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The Court dismissed Plaintiff’s claims relating to the October, 14, 2011 incident as

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time-barred because Plaintiff failed to file suit within six months after the administrative

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denial of his claims. See ECF No. 33. Furthermore, Plaintiff has failed to establish any

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connection between Daniel Dierdorff and the alleged incidents that took place on March

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24, 2011. The Court finds that substituting the newly discovered Defendants for the

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Doe Defendants would be futile.

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The Court further finds that it is not in the interest of justice to allow filing of a

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second amended complaint at this late stage in the pleading in order to add the newly

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discovered defendants. Discovery closed on July 13, 2015, and the date by which to file

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any pretrial motions has passed. See ECF No. 297. Defendants have made a

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sufficiently strong showing of the Foman factors to overcome the presumption in favor

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of granting leave to amend under Rule 15(a). After considering the motions and

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Defendants’ oppositions, Plaintiff’s Motion for Leave to the second amended complaint

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and ex parte motion to substitute Doe Defendants are denied.

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///

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Conclusion

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IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to Amend the First

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Amended Complaint (ECF No. 320) and Plaintiff’s “Ex Parte Motion to Substitute

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‘Doe’ Defendants & Motion for Clarification on Whether These Substitutions May

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Supersede & Replace His Motion To Amend The First Amended Complaint” (ECF No.

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321) are DENIED.

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DATED: August 25, 2015

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WILLIAM Q. HAYES
United States District Judge

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