Del Socorro Quintero Perez et al v. United States of America et al

Filing 60

ORDER: Plaintiffs' Motion for Leave to File Second Amended Complaint (Doc. 51 ) is granted. Plaintiffs shall file the Second Amended Complaint, as set forth as an exhibit to the Motion (Doc. 51 -2), within ten (10) days from the date this Order is filed. Defendants shall respond to the Second Amended Complaint within fourteen (14) days from the date the Second Amended Complaint is re-filed. Signed by Judge William Q. Hayes on 11/19/2014. (mdc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

12

MARIA DEL SOCORRO QUINTERO
PEREZ C.Y., a Minor, and B.Y., a
Minor,

13

Plaintiffs,

11

21

ORDER

vs.
UNITED STATES OF AMERICA,
UNITED STATES DEPARTMENT
OF HOMELAND SECURITY,
UNITED STATES CUSTOMS AND
BORDER PROTECTION OFFICE OF
BORDER PATROL, JANET
NAPOLITANO, THOMAS S.
WINKOWSKI, DAVID AGUILAR,
ALAN BERSIN, KEVIN K.
McALEENAN, MICHAEL J.
FISHER, PAUL A. BEESON,
RICHARD BARLOW, RODNEY S.
SCOTT, CHAD MICHAEL NELSON,
and DORIAN DIAZ, and DOES 1-50,

22

CASE NO. 13cv1417-WQHBGS

Defendants.

14
15
16
17
18
19
20

23 HAYES, Judge:
24

The matter before the Court is the Motion for Leave to File Second Amended

25 Complaint filed by Plaintiffs (ECF No. 51).
26 I. Background
27

On June 17, 2013, Plaintiffs commenced this action by filing a Complaint in this

28 Court. (ECF No. 1). On December 16, 2013, the parties filed a joint motion for leave
-1-

13cv1417-WQH-NLS

1 to amend the Complaint. (ECF No. 23). On December 18, 2013, the Court granted the
2 motion for leave to amend. (ECF No. 24). On January 2, 2014, Plaintiffs filed a First
3 Amended Complaint (“FAC”). (ECF No. 25). On February 18, 2014, the United
4 States, the Agency Defendants, and the Supervisor Defendants sued in their official
5 capacities1 filed a motion to dismiss, and the Supervisor Defendants and Agent
6 Defendants sued in their individual capacities2 filed a motion to dismiss. (ECF Nos. 267 27). On September 3, 2014, the Court granted in part and denied in part both motions
8 to dismiss. (ECF No. 46).
9

On October 6, 2014, Plaintiffs filed the Motion for Leave to File Second

10 Amended Complaint. (ECF No. 51). On October 20, 2014, Defendant David Aguilar
11 filed an opposition. (ECF No. 56). On October 27, 2014, Plaintiffs filed a reply. (ECF
12 No. 58).
13 II. Contentions of the Parties
14

Plaintiffs contend that Defendants will not be prejudiced from clarifying existing

15 theories in the First Amended Complaint. Plaintiffs contend that the proposed second
16 amended complaint demonstrates that Defendants Napolitano, Bersin and Aguilar knew
17 of and acquiesced in the Rocking Policy. Plaintiffs contend that the proposed second
18 amended complaint establishes personal jurisdiction over Defendant Aguilar by alleging
19 additional facts regarding Defendant Aguilars knowledge and acquiescence. Plaintiffs
20 contend that the proposed second amended complaint establishes secondary liability
21 against Agent Nelson.
22

Defendant Aguilar contends that the proposed second amended complaint alleges

23 insufficient facts to establish specific personal jurisdiction over Defendant Aguilar.
24
25

1

These Defendants were the United States of America, U.S. Department of
Homeland Security, U.S. Customs and Border Protection, Office of Border Patrol, Janet
26 Napolitano, Thomas S. Winkowski, Alan Bersin, Kevin K. McAleenan, Michael J.
27 Fisher, Paul A. Beeson, Richard Barlow, and Rondey S. Scott.
2

These Defendants were
28 Alan Bersin, Kevin McAlleenan,Janet Napolitano, Thomas Winkowski, David Aguilar,
Michael Fisher, Paul Beeson, Richard Barlow, Rodney
Scott, Chad Nelson, and Dorian Diaz.

-2-

13cv1417-WQH-NLS

1 Defendant Aguilar contends that the proposed second amended complaint is no
2 different than the FAC in this regard. Defendant Aguilar contends that he should not
3 have to continue defending this action because personal jurisdiction has not been
4 established over him.
5 III. Discussion
6

Federal Rule of Civil Procedure 15 mandates that leave to amend “be freely given

7 when justice so requires.” Fed. R. Civ. P. 15(a). “This policy is to be applied with
8 extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th
9 Cir. 2003) (quotation omitted). In determining whether to allow an amendment, a court
10 considers whether there is “undue delay,” “bad faith,” “undue prejudice to the opposing
11 party,” or “futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Not
12 all of the [Foman] factors merit equal weight.... [I]t is the consideration of prejudice
13 to the opposing party that carries the greatest weight.” Eminence Capital, 316 F.3d at
14 1052 (citation omitted). “The party opposing amendment bears the burden of showing
15 prejudice.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).
16 “Absent prejudice, or a strong showing of any of the remaining Foman factors, there
17 exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence
18 Capital, 316 F.3d at 1052.
19

In the September 3, 2014 Order, the Court found that “[t]he FAC’s general

20 allegations of [Defendants Winkowski, Aguilar, and McAlleenan’s] supervisory
21 responsibilities and alleged implementation of the Rocking Policy, without more, do not
22 satisfy Plaintiffs’ prima facie burden to satisfy the purposeful direction test.” (ECF No.
23 46 at 14).

The Court further found that “these federal officers’ alleged

24 omissions—failures to train, supervise, and prevent or correct the use of the Rocking
25 Policy—are not ‘intentional acts[s] ... expressly aimed at the forum state.’” Id. (citing
26 Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1206
27 (9th Cir. 2006)). The Court also noted that “[w]hether the Court may exercise specific
28 jurisdiction over these Defendants will depend on whether Plaintiffs can allege forum-3-

13cv1417-WQH-NLS

1 related activity giving rise to their claims.” Id. at 15.
2

The proposed second amended complaint adds factual allegations against

3 Defendant Aguilar.

The Court will defer consideration of Defendant Aguilar’s

4 challenge to personal jurisdiction and any challenges to the merits of the proposed
5 second amended complaint until after the amended pleading is filed. See Netbula v.
6 Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003) (“Ordinarily, courts will defer
7 consideration of the challenges to the merits of a proposed amended pleading until after
8 leave to amend is granted and the amended pleading is filed.”).
9

After review of the motion, the proposed second amended complaint, and the

10 filings of the parties, the Court concludes that Defendants have not made a sufficiently
11 strong showing of the Foman factors to overcome the presumption under Rule 15(a) in
12 favor of granting leave to amend. See Eminence Capital, 316 F.3d at 1052.
13 IV. Conclusion
14

IT IS HEREBY ORDERED that Plaintiffs’ Motion for Leave to File Second

15 Amended Complaint (ECF No. 51) is GRANTED. Plaintiffs shall file the Second
16 Amended Complaint, as set forth as an exhibit to the Motion (ECF No. 51-2), within
17 ten (10) days from the date this Order is filed. Defendants shall respond to the Second
Second
___
18 Amended Complaint within fourteen (14) days from the date the First Amended
19 Complaint is re-filed. Fed. R. Civ. P. 15(a)(3).
20 DATED: November 19, 2014
21
22

WILLIAM Q. HAYES
United States District Judge

23
24
25
26
27
28
-4-

13cv1417-WQH-NLS

(mdc)