Ayala et al v. County of Imperial et al

Filing 42

ORDER vacating order of dismissal, denying ex parte motion to amend 40 , entering partial final judgment, and admonition to counsel. No later than Tuesday, April 25, 2017, plaintiffs' counsel may file a renewed motion for leave to amend that co mplies with all of the Court's orders and directions, as well as all applicable rules. As to claims by Sandra Barraza, and all claims against the City of Calexico, the U.S. Drug Enforcement Agency, the U.S. Border Patrol, the U.S. Immigration a nd Customs Enforcement, and all Doe Defendants, the Court determines that there is no just reason to delay entry of a final judgment. As to these claims, the Court directs that judgment be entered in favor of Defendants. Signed by Judge Larry Alan Burns on 3/21/17. (kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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VIRGIE AYALA, et al.,

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CASE NO. 15cv397-LAB (PCL)
Plaintiffs,

ORDER VACATING ORDER OF
DISMISSAL;

vs.

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ORDER DENYING EX PARTE MOTION
TO AMEND;

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ORDER ENTERING PARTIAL FINAL
JUDGMENT; AND

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COUNTY OF IMPERIAL,

ADMONITION TO COUNSEL

Defendant.

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Procedural Background and Vacatur of Dismissal

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This case concerns the fatal shooting of Mark Ayala in El Centro, California on

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January 31, 2014. On February 3, 2017, the Court dismissed the first amended complaint

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and directed Plaintiffs, if they thought they could amend, to file an ex parte motion for leave

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to do so, attaching their proposed second amended complaint as an exhibit. They were also

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ordered to show cause why the Doe Defendants should not be dismissed for failure to serve.

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Both were to have been done by March 1, 2017.

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On the deadline, Plaintiffs attempted to circumvent the Court’s order by filing three

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noncompliant documents, including a second amended complaint that was not attached to

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a motion. Because of Plaintiffs’ decision to submit noncompliant paper copies instead of
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obeying electronic filing rules, the documents did not immediately appear in the docket. The

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Court, believing Plaintiffs had abandoned their claims, therefore dismissed the case and

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entered judgment. When the documents were later forwarded to chambers, the Court issued

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an order correcting various problems and specifically ordering Plaintiffs’ counsel to obey

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certain requirements. (See Order of March 7, 2017 (Docket no. 37).) The Court then struck

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two of the documents, and denied a motion for leave to take early discovery. It also ordered

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Plaintiffs’ counsel to comply with local electronic filing requirements and cautioned them that

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any further violations of those requirements would result in both rejection of the submitted

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documents, and sanctions.

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The Court then ordered Plaintiffs to file an ex parte motion for leave to amend by

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March 15, 2017. (Docket no. 37 at 2:15–16.) They were specifically cautioned that if they

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did not obey the Court’s order, the action would be dismissed without leave to amend.

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(Docket no. 37 at 2:19–21) (emphasis in original).

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When Plaintiffs again missed the deadline, the Court again dismissed the case. After

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that, Plaintiffs filed another late and noncompliant document. This time it is a motion for

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leave to file a second amended complaint. Besides missing the deadline, it violates several

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local rules that Plaintiff have specifically been told they must obey.

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Plaintiffs’ counsel have again violated Civil Local Rule 5.1, regarding legibility of

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documents, in spite of being reminded about it twice. In particular, their violation of Rule

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5.1(a) regarding font size makes their briefing unduly hard to read.1 They also violated Civil

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Local Rule 15.1(b), concerning requirements for motions for leave to amend. Together, these

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two violations mean the Court has been handed the task of visually comparing two lengthy

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complaints in small type. In future, Plaintiff’s counsel will be required to comply with these

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and all other applicable rules.

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One of Plaintiffs’ counsel’s many violations was that since the start of the case,
neither one had registered for electronic case filing, which is mandatory in this District for all
attorneys. This was a continuing violation they had been warned about four times. One of
the two has now registered, but does not appear to have the required software and
hardware. (See Users Manual for Electronic Case Filing at 6.) Plaintiffs’ documents appear
to have been typed on an 8-point typewriter, then scanned, and an image of the pages
uploaded to the docket. The resulting image is not text searchable.
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Although Plaintiffs’ counsel have persistently violated rules, ignored deadlines, and

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disregarded the Court’s orders, the Court is mindful of the policy of adjudicating cases on

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the merits where reasonably possible. See Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir.

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1986). Because it appears Plaintiffs are still making some effort to litigate this case and an

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adjudication on the merits is still a possibility, and in view of the serious nature of Plaintiffs’

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claims, the Court VACATES its order of dismissal entered March 16.

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Denial of Motion for Leave to Amend

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The repeated violations partially outlined above would, by themselves, merit summary

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denial of the motion for leave to amend. But the motion also fails on the merits. The motion

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attaches a proposed second amended complaint (“SAC”).

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Except for the County of Imperial, all Defendants, have been dismissed without leave

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to amend. This includes the City of El Centro, the City of Brawley, the City of Imperial, the

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City of Calexico, the U.S. Drug Enforcement Agency, the U.S. Border Patrol, U.S. Customs

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and Immigration Enforcement, and, most recently all Doe Defendants.2 The SAC’s caption,

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however, includes all the original Defendants.

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The SAC tries to resurrect claims against the Doe Defendants that were dismissed

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without leave to amend. It does so by identifying them as parties, by making lengthy and

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detailed allegations against them, and by raising six claims against them. Plaintiffs did not

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seek reconsideration of the Court’s order dismissing the Doe Defendants. Attempting to

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circumvent the Court’s orders in this way is improper and will not be allowed.

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The SAC also fails to name the County in the “Parties” section, and fails to make any

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allegations against it that would result in its liability until claim seven, on page 14 of the SAC,

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for municipal liability under Monell v. New York City Dept. of Social Services, 436 U.S. 658

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(1978). And even then, the claims are woefully inadequate. The SAC alleges that the

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County has the power to adopt policies. (SAC, ¶ 95.) Then in an attempt to identify what

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those policies were that gave rise to the claims here, they allege, in toto:

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See Docket no. 38 (Order denying leave to conduct early discovery, and dismissing
all claims against Doe Defendants without leave to amend, for failure to serve).
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96. [The County and certain Doe Defendants), through their employees,
officers, and deputy sheriffs knowingly and intentionally promulgated,
maintained, applied, enforced, and suffered the continuation of policies,
customs, practices, and usages in violation of AYALA’s rights under the
Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.
97. The [Imperial County Narcotics Task Force], through its managers,
supervisors, and policymakers, fostered a custom of extreme lawlessness,
which inevitably and foreseeably led to AYALA being shot in excess of 37
times and killed.

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(SAC, ¶¶ 96–97.) As the Court has explained more than once before (see, e.g., Docket no.

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27, 9:5–11:23), this clearly falls short of the pleading standard the Supreme Court set forth

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in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554–55 (2007) and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009). See also AE ex rel Hernandez, 666 F.3d 631, 637 and n.5 (9th Cir.

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2012) (holding that the Twombly/Iqbal standard applies to Monell claims). Even worse, other

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elements of a Monell claim, which the Court pointed out in earlier rulings, are also missing.

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See Plumeau v. Sch. Dist. No. 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997).

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In addition, the SAC again fails to allege facts showing that the Imperial County

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Narcotics Task Force is an arm or division of the County of Imperial, as opposed to a federal

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entity, an arm of the state of California, or an entity in its own right. As made clear in earlier

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pleadings, the Task Force is staffed with both federal and county officers, so it is hardly clear

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that the County’s policies are the moving force behind the Task Force’s constitutional

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violations, as is required for a Monell claim. (See Docket no. 27 at 12:3–13.) The Court has

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already taken judicial notice of government documents showing the Task Force is part of the

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U.S. Drug Enforcement Agency3 (see Docket no. 27 at 2:22–4:4), which has already been

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dismissed as a Defendant. In addition, the Task Force was originally named as a Defendant

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in its own right, but has since been dismissed. To the extent Plaintiffs were bringing tort

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claims against any federal Defendants, they failed to comply with Federal Tort Claims Act

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requirements.

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Although the Court did not rely on caselaw, it is worth noting that in the past, joint
task forces of this type have been controlled by the U.S. Drug Enforcement Agency. See
Liston v. County of Riverside, 120 F.3d 965, 988 (9th Cir. 1997) (“[O]fficers from several law
enforcement agencies, under the control of the Federal Drug Enforcement Agency, formed
a joint narcotics task force . . . .”)
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The proposed SAC attempts to overcome the facts of which the Court has taken

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notice, by citing the results of a Google search and the fact that the Imperial County District

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Attorney is chair of the Task Force. (SAC, ¶¶ 99–100.) The fact that Google’s algorithms

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associate the Task Force with the Imperial County Sheriff’s office is of no help here. And

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the fact that the District Attorney is the Task Force’s chair does not show that the Task Force

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itself is run by the County or that the County formulates its policies. See, e.g., Sharer v.

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Oregon, 581 F.3d 1176, 1179–80 (9th Cir. 2009) (considering various factors to determine

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whether two state entities, both headed by the same official, were independent of each

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other). Finally, the allegation that the Task force is either the County’s alter ego or else a

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“joint venturer with the County” is wholly conclusory and unsupported by factual allegations.

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The motion to which the SAC is attached cites the “any set of facts” pleading

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standard, arguing that a complaint meets the pleading standard only if no set of facts can

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be proved under the amendment that would constitute a valid claim. (Docket no. 40 at

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3:2–4.) The Supreme Court has specifically disapproved this standard, Plaintiffs should not

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rely on it again.4

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In short, the proposed SAC violates several rules and Court orders, improperly

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attempts to resurrect claims dismissed without leave to amend, and in its present form easily

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fails to satisfy the pleading standard. Even if it were filed, it would be subject to immediate

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dismissal. Granting leave to file to SAC in its present condition would therefore be futile, and

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the motion is DENIED.

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If Plaintiffs’ counsel believe there is any chance they can successfully amend, they

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must first review all the Court’s rulings in this case as well as the Civil Local Rules

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(particularly Rules 5.1 and 15.1.) No later than Tuesday, April 25, 2017, they may file a

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renewed motion for leave to amend that complies with all of the Court’s orders and

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If Plaintiffs’ counsel had Shepardized this case, they would have seen that it had
been impliedly overruled on this point by Twombly and Iqbal. See, e.g., Twombly, 550 U.S.
at 560–63. To be sure, an amended complaint that fails even this lenient test would be
subject to dismissal and such an amendment would be futile, and cases continue to cite it
for that purpose. But an amendment that passes the “any set of facts” test does not
necessarily meet the higher standard set forth in Twombly and Iqbal, and that is the purpose
for which the standard is cited here.
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directions, as well as all applicable rules.

They must not attempt to add any new

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Defendants, to bring claims against any Defendants who have dismissed, or to raise any

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claims other than a Monell claim against the County. And they must not seek reconsideration

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of any of the Court’s orders unless they comply with ¶ 4(j) of the Court’s standing order.

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The Court has deliberately set an unusually generous deadline for Plaintiffs to comply

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with this order, so that they will have plenty of time to comply if they possibly can, and also

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so that if they do file a motion, it will be the result of diligent, careful work. Failure to file a

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motion within the time permitted that complies with all these requirements will result

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in dismissal of this entire action without leave to amend, and no additional

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opportunities to amend will be given. No more extensions will be granted.

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Entry of Judgment Under Fed. R. Civ. P. 54(b)

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Under Fed. R. Civ. P. 54(b), the Court may order the entry of final judgment as to

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some but not all claims in appropriate circumstances. On March 24, 2016, all claims were

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dismissed without leave to amend as to the City of Calexico, the U.S. Drug Enforcement

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Agency, the U.S. Border Patrol, and the U.S. Immigration and Customs Enforcement. On

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March 7, 2017, all Doe Defendants were also dismissed. None of these Defendants were

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ever served with process, nor did Plaintiffs even make an effort during the two years this

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case has been pending. In all likelihood, the Doe Defendants do not even know they were

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ever Defendants in this suit. This meant that the Court never had personal jurisdiction over

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them. See S.E.C. v. Ross, 504 F.3d 1130, 1140 (citing precedent for the principle that only

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substantial compliance with Fed. R. Civ. P. 4 gives federal courts jurisdiction over

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defendants). Furthermore, the two-year statute of limitations on claims against them has

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now run, so the claims are permanently barred. See Butler v. Nat’l Community Renaissance

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of Calif., 766 F.3d 1191, 1198 (9th Cir. 2014). These Defendants therefore were entitled to

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expect that they would no longer have to defend against the claim, and requiring them to do

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so now would unfairly surprise and prejudice them. See Anderson v. Air West, Inc., 542

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F.2d 522, 525 (9th Cir. 1976) (holding that dismissal was the appropriate sanction, where

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plaintiff had failed to serve defendants until after the limitations period had expired).
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Although another case now pending in this Court brings claims based on the same incident,

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none of these Defendants were ever Defendants in that case.

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In view of Plaintiffs’ repeated efforts to drag the federal Defendants and Doe

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Defendants back into the case, the Court determines that there is no just reason to delay

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entry of judgment as to claims against them. See 10 Wright, Miller & Kane, Federal Practice

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and Procedure: Civil 3d § 2656 at n.20 (3d ed.) (“Once the statute has run, a potential

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defendant who has not been served is entitled to expect that he will no longer have to defend

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against the claim.”).

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Claims by Plaintiff Sandra Barraza were also dismissed on the merits without leave

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to amend, for lack of standing. (See Docket no. 27 at 6:1–9, 13:27–28.) See 10 Wright,

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Miller & Kane, Federal Practice and Procedure: Civil 3d § 2656 at n.19 (3d ed.) (dismissal

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for lack of subject matter jurisdiction that disposes of a claim completely is within the scope

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of Rule 54(b)).

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As to claims by Sandra Barraza, and all claims against the City of Calexico, the U.S.

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Drug Enforcement Agency, the U.S. Border Patrol, the U.S. Immigration and Customs

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Enforcement, and all Doe Defendants, the Court determines that there is no just reason to

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delay entry of a final judgment. As to these claims, the Court directs that judgment be

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entered in favor of Defendants.

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Admonition to Plaintiffs’ Counsel

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Plaintiffs’ counsel’s repeated violations of the Court’s orders and applicable rules have

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gone well beyond excusable neglect. Their latest infraction is extraordinary. In the Court’s

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memory, it has never vacated a dismissal twice in the same case because of a party’s

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tardiness — particularly when counsel offered no explanation for missing the deadline.

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Most recently, Plaintiffs were strictly ordered to file their motion no later than March

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15. If they did so, Defendants were given until March 29 to file a response in opposition.

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When the March 15 deadline passed, the Court dismissed the case, just as it said it would.

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Then Plaintiffs’ counsel without explanation or comment filed their tardy motion. Violations

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like this unfairly prejudice Defendants and prevent the Court from controlling its docket.
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Defense counsel had every reason to think the Court’s scheduling order meant what

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it said. When March 15 came and went and the Court dismissed the case on March 16, they

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had every reason to think the case actually was dismissed. They were free to turn their

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attention to other tasks and to adjust their schedules accordingly. When Plaintiffs’ counsel

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filed their late motion, Defense counsel could not have known for certain what to do. Would

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the Court accept the late filing? And in case the Court did accept it, should they begin

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preparing their opposition? And if a filing was due, Plaintiffs’ tardiness had eaten up some

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of their response time; was the deadline still March 29, or would their deadline be extended?

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With this late and unexplained filing, Plaintiffs’ counsel unfairly surprised their opponents and

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imposed undue burdens on them. Whether this was the result of gamesmanship or merely

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inexcusable negligence, the result was the same. Plaintiffs’ counsel gained an unfair

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advantage at Defendants’ expense.

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The late filing also wasted judicial resources and prevented the Court from controlling

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its own docket. In this case, the Court issued a scheduling order with its own schedule in

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mind. If the Court’s order had been followed, the Court either would have been able to

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dismiss the case on March 16 with a brief order, or wait for Defendants’ briefing on March

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29. Either way, the Court would have been free to turn its attention to matters on calendar.

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On March 15 and 16, the Court was in the middle of a civil trial, and a motion for a temporary

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restraining order had just come in. Both are urgent matters that the Court must attend to

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promptly. The rogue filing derailed the schedule the Court had set, forcing the Court to deal

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with the artificial emergency Plaintiffs’ counsel’s violation had needlessly created. As a

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result, it was not until Monday, March 20, that the Court was able to issue an order relieving

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Defense counsel of filing a response to the late filing.

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While the Court has done its best to uphold the policy of deciding cases on their

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merits whenever reasonably possible, the time has come when it is no longer reasonably

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possible to do so justly. Plaintiffs’ counsel are not entitled to special indulgences and favors

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at Defendants’ expense. And the Court is not prepared to abandon its role as a neutral and

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impartial arbitrator to ride to Plaintiffs’ rescue when their own counsel cannot or will not.
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While adjudication on the merits is an important policy, considerations of fairness, expense,

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and finality are important as well. See Fed. R. Civ. P. 1; see also Anderson, 542 F.2d at

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526 (holding that dismissal of claims avoided the evil of allowing the plaintiff to benefit from

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her attorney’s abuses, and was not an unduly harsh sanction).

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Plaintiffs’ counsel will not be permitted to usurp control of the docket or to impose

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unfair burdens on their opponents, who are relying on the Court’s orders. Plaintiffs’ counsel

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must read and comply with all of the Court’s orders, the Court’s own standing order, the Civil

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Local rules, and the Federal Rules of Civil Procedure. At this point, sanctions less than

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dismissal do not appear to be an option. See Anderson, 542 F.2d at 525. Plaintiffs’ counsel

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should expect that any further violations will result in dismissal. If this case is dismissed,

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there will be no third vacatur.

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IT IS SO ORDERED.
DATED: March 21, 2017

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HONORABLE LARRY ALAN BURNS
United States District Judge

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