San Diego Branch of National Association For The Advancement of Colored People et al
Filing
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ORDER granting 107 Plaintiffs' unopposed Motion to add "Doe" Defendants. Signed by Judge Janis L. Sammartino on 9/12/2019. (jpp)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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ERIC BIDWELL, et al.,
Case No.: 16-CV-2575 JLS (MSB)
Plaintiffs,
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ORDER GRANTING PLAINTIFFS’
UNOPPOSED MOTION TO ADD
“DOE” DEFENDANTS
v.
COUNTY OF SAN DIEGO, et al.,
Defendants.
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(ECF No. 107)
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Presently before the Court is Plaintiffs Motion to Add “Doe” Defendants (“Mot.,”
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ECF No. 107), which set for a hearing on September 19, 2019. Defendants County of San
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Diego; Sheriff William D. Gore; and Sheriff’s Deputies Rodrigo Aristizabal, James
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Balderson, Jacob Booher, Elvys Cabrera, Daniel Follosco, Matthew Gibson, Elisha
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Hubbard, Ericson Lamaster, Eric Price, and Tyler Skeels filed a notice of non-opposition
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to the Motion. See ECF No. 112. Defendants City of El Cajon; Police Chief Jeff Davis;
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and El Cajon Police Officers Melisa Calderon, Kenneth Davenport, Greg Robertson, and
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Jason Sargent have not filed an opposition or notice of non-opposition to the Motion.
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The Court finds this matter suitable for submission without oral argument pursuant
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to Civil Local Rule 7.1(d)(1). Having carefully considered the proposed Fifth Amended
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Complaint and Plaintiffs’ Motion, the Court GRANTS Plaintiffs’ unopposed Motion.
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///
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16-CV-2575 JLS (MSB)
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Through their Motion, Plaintiffs seek pursuant to Federal Rule of Civil Procedure
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15 and California Civil Procedure Code section 474 to substitute the following six
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individuals for Doe Defendants: San Diego Sheriff’s Office Lieutenant Robert Smith, El
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Cajon Police Department Lieutenant Eric Taylor, El Cajon Police Department Captain
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Michael Moultin, San Diego Sheriff’s Office Captain Hank Turner, San Diego Sheriff’s
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Office Sergeant Dustin Lopez, and San Diego Sheriff’s Office Lieutenant Michael Rand.
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Mot. at 5–6. Plaintiffs explain that Defendants identified Captains Moultin and Turner,
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Sergeant Lopez, and Lieutenant Rand “[i]n discovery finally received just in the past two
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weeks,” but that Lieutenants Smith and Taylor filed declarations in opposition to Plaintiffs’
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October 2016 application for a temporary restraining order. See id. at 5; see also ECF Nos.
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6-1, 7-3. Indeed, on October 20, 2016, Lieutenant Smith attested under penalty of perjury
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that, “[o]n the evening of Saturday October 1, 2016, [he] was commanding the Sheriff’s
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Mobile Field Force (MFF) platoon,” was called to 777 Broadway “to . . . order [the crowd]
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to disperse,” and “directed the line of MFF platoon deputies to . . . arrest those who
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remained in the crowd.” See ECF No. 6-1 ¶¶ 4–7. Similarly, on October 20, 2016,
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Lieutenant Taylor declared under penalty of perjury that, “[o]n the night of October 1,
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2016, to the early morning hours of October 2, 2016, [he] was the incident commander for
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the protests occurring in the vicinity of 777 Broadway in El Cajon” and that he “gave the
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order for the Sheriff’s department helicopter (“ASTREA”) to give an unlawful assembly
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order.” ECF No. 7-3 ¶¶ 4, 7.
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As Plaintiffs themselves recognize, see Mot. at 4 (citing Fireman’s Fund. Ins. Co. v.
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Sparks Const., Inc., 114 Cal. App. 4th 1135, 1143 (2004)) (emphasis added), “CCP § 474
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allows Doe defendants to be added within three years of the filing date of the original
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complaint if . . . the plaintiff amends once the true name of the defendant is discovered.”
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Consequently, “section 474 includes an implicit requirement that a plaintiff may not
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‘unreasonably delay’ his or her filing of a Doe amendment after learning a
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defendant’s identity.” A.N. v. Cnty. of Los Angeles, 171 Cal. App. 4th 1058, 1066–67, as
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modified on denial of reh’g (Apr. 6, 2009).
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16-CV-2575 JLS (MSB)
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Although Plaintiffs may not have known the identities of Lieutenants Smith and
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Taylor when they filed their original complaint on October 16, 2016, see generally ECF
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No. 1, they learned of their identities on October 21, 2016, when Defendants filed
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declarations written by those two Lieutenants in support of their opposition to Plaintiffs’
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motion for a temporary restraining order. See ECF Nos. 6-1, 7-3. Nonetheless, Plaintiffs
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did not seek to amend their complaint to substitute Lieutenants Smith and Taylor for
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previously unidentified Does Defendants until August 5, 2019, see ECF No. 107, nearly
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three years later and after filing several other amended complaints on November 21, 2016,
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see ECF No. 18; June 20, 2017, see ECF No. 37; April 18, 2018, see ECF No. 69; and
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February 25, 2019. See ECF No. 85. Plaintiffs provide no justification—let alone a
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reasonable one—for this delay. See, e.g., A.N., 171 Cal. App. 4th at 1067 (denying leave
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to amend where the court of appeal “s[aw] no reasonable explanation in the record for [the
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plaintiff]’s roughly two-year delay in filing and serving the Doe amendments”).
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That said, “‘unreasonable delay’ . . . includes a prejudice element, which requires a
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showing by the defendant that he or she would suffer prejudice from plaintiff’s delay in
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filing the Doe amendment.” Id. Here, Defendants have not opposed Plaintiffs’ Motion,
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much less attempted to make any showing of prejudice as to the substitution of Lieutenants
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Smith and Taylor. Consequently, despite Plaintiffs’ undue delay, the Court determines that
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Plaintiffs’ have met their burden with respect to substitution of all six previously
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unidentified Doe Defendants.
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Pursuant to California Civil Procedure Code section 474, Federal Rule of Civil
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Procedure 15(c)(1)(C), and Civil Local Rule 7.1(f)(3)(c), the Court therefore GRANTS
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Plaintiffs’ Motion. Plaintiffs SHALL FILE their Fifth Amended Complaint, previously
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filed as ECF No. 107-2, within three (3) days of the electronic docketing of this Order.
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IT IS SO ORDERED.
Dated: September 12, 2019
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16-CV-2575 JLS (MSB)
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