Martinez et al v. City and County of Denver et al
Filing
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ORDER granting 61 Motion for Leave to File Amended Complaint. Defendants shall respond to the Amended Complaint on or before 10/1/2012. By Magistrate Judge Kristen L. Mix on 09/18/2012.(klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00102-MSK-KLM
DANIEL MARTINEZ JR.,
NATHAN MARTINEZ,
DANIEL MARTINEZ III, and
JONATHAN MARTINEZ,
Plaintiffs,
v.
CITY AND COUNTY OF DENVER, a municipality,
JASON VALDEZ, in his individual and official capacity,
ROBERT MARTINEZ, in his individual and official capacity,
ROBERT MOTYKA, in his individual and official capacity, and
BRYCE JACKSON, in his individual and official capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiffs’ Motion for Leave to File Amended
Complaint [Docket No. 61; Filed July 20, 2012] (the “Motion”). On August 9, 2012,
Defendants filed a Response [#65] in opposition to the Motion, and on August 23, 2012,
Plaintiffs filed a Reply [#66]. The Motion is thus fully briefed and ripe for resolution. For
the reasons set for below, the Motion is GRANTED.
This matter pertains to Defendants’ alleged violation of Plaintiffs’ constitutional rights
in connection with Plaintiffs’ arrest at their home on January 27, 2009. See Scheduling
Order [#20] ¶ 3.a. Specifically, Plaintiffs contend that Denver law enforcement personnel
were informed that drug and prostitution activity was occurring at Plaintiffs’ residence. Id.
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However, the former tenants of the residence, who were allegedly responsible for the illegal
activity, had been evicted in early December 2008. Id. On January 27, 2009, Plaintiffs
allege that Defendants Jason Valdez, Robert Martinez, Robert Motyka, and Bryce Jackson
(collectively, the “Officer Defendants”) entered Plaintiffs’ home and forcibly arrested them.
Id. The charges against some Plaintiffs were dismissed, and other Plaintiffs were found
not guilty by a jury. Id.
Plaintiffs make the following claims pursuant to 42 U.S.C. § 1983: (1) Fourth
Amendment violation based on excessive force; (2) Fourth Amendment violation based on
false arrest and unlawful seizure; (3) constitutional failure to train and/or supervise; (4)
Fourth and Fourteenth Amendment violations based on unlawful entry; (5) Fourth and
Fourteenth Amendment violations of procedural due process based on malicious
prosecution; and (6) Fourth and Fourteenth Amendment violations of procedural due
process based on vindictive prosecution. Compl. [#1] ¶¶ 41-97.
Discovery in this matter closed on April 11, 2012. Minute Order [#46]. More than
one year later (May 31, 2012), the Officer Defendants filed a Motion for Partial Summary
Judgment [#50]. In part, that motion sought judgment on the pleadings pursuant to Fed.
R. Civ. P. 12(c) relating to Plaintiffs’ sixth claim for vindictive prosecution. Mot. for Partial
Summ. J. [#50] at 15. Also on May 31, 2012, Defendant City and County of Denver
(“Denver”) filed a Motion for Summary Judgment [#51] on Plaintiffs’ third claim for failure
to train and/or supervise. That motion construed Plaintiffs’ Complaint as asserting only the
third claim against Defendant Denver. Mot. for Summ. J. [#51] at 1.
Plaintiffs seek to amend the Complaint to clarify these asserted deficiencies. A
vindictive prosecution claim requires Plaintiffs to demonstrate that Defendants “engaged
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in conduct that would not have occurred but for [their] desire to punish [Plaintiffs] for
exercising a specific legal right.” United States v. Sarracino, 340 F.3d 1148, 1178 (10th Cir.
2003). Defendants aver that Plaintiffs’ Complaint fails to allege the exercise of any specific
legal right. Mot. for Partial Summ. J. [#50] at 15. In the Motion, Plaintiffs seek to amend
the Complaint to allege the exercise of specific legal rights already purportedly supported
by the facts in their Complaint. Motion [#61] at 7-8. In connection with the claims made
against Defendant Denver, Plaintiffs seek to make explicit that, in fact, all six claims in the
Complaint were brought against Defendant Denver. Id. at 8-9.
As a preliminary matter, the pleading amendment deadline expired on May 30, 2011.
Sched. Ord. [#20] at 8. The present Motion was filed on July 20, 2012 and, therefore, is
untimely. Accordingly, Plaintiffs must provide good cause for their failure to timely move
for amendment pursuant to Fed. R. Civ. P. 16(b)(4). Plaintiffs contend that they could not
meet the pleading amendment deadline because they were unaware of the asserted
pleading deficiencies until a year after the deadline had passed. Motion [#61] at 4-5; Reply
[#66] at 2-3. Defendants counter that Plaintiffs’ conduct does not evidence the diligence
necessary to satisfy the Rule 16(b)(4) good cause standard. Response [#65] at 2-23.
The facts relevant to the good cause determination are set forth in the Motion.
Plaintiffs state that they were unaware of any alleged pleading deficiencies until Defendants
filed their motions for summary judgment [#50, #51] on May 31, 2012. Motion [#61] at 2-3.
Plaintiffs assert that Defendants did not confer with them about either issue prior to filing
their motions for summary judgment. Id. at 2. On July 6, 2012, Plaintiffs filed their
responses to the motions for summary judgment [#55, #56] and two weeks later filed the
present Motion [#61] seeking to amend the Complaint.
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Plaintiffs must “show that [they were] diligent in attempting to meet the [pleading
amendment] deadline,” and this standard can be met by the provision of “an adequate
explanation for any delay.” Minter v. Prime Equip. Co., 451 F3d 1196, 1205 & n.4 (10th Cir.
2006) (explaining that lateness itself does not justify denial of a motion to amend, but
“undue” lateness does). The Court notes Plaintiffs’ assertion that they had no knowledge
that Defendants thought the Complaint was deficient until a year after the pleading
amendment deadline expired. Defendants do not disagree that these issues were not
previously raised. Plaintiffs acted within fifty days of obtaining this knowledge to clarify
what they already thought was clear in the Complaint. Finally, while surprise and the length
of the delay are not traditional considerations in determining whether a party has been
diligent, the Court notes that Defendants apparently surprised Plaintiffs by raising these
issues and that Plaintiffs moved quickly to address the perceived deficiencies in their
Complaint.
The Court further notes that it is arguable whether amendment of the
Complaint is necessary. As indicated above, the Complaint already alleges facts relating
to Plaintiffs’ exercise of specific legal rights, so as to support the vindictive prosecution
claim. Compl. [#1] at 4, 21. Moreover, the Complaint can fairly be read to assert all six
claims against Defendant Denver. Id. at 7, 9, 10, 12, 13, 14.
The Court finds that, under these circumstances, Plaintiffs have provided good
cause for requesting leave to amend outside the pleading amendment deadline. See
Pumpco, Inc. v. Schenker Int’l, Inc. 204 F.R.D. 667, 668 (D. Colo. 2001).
With good cause shown pursuant to Rule 16(b)(4), the Court next considers any
arguments raised by the parties related to whether justice would be served by amendment.
The Court should grant leave to amend “freely . . . when justice so requires.” Fed. R. Civ.
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P. 15(a)(2). In situations where the request falls outside the pleading amendment deadline
and good cause is shown, leave should generally be permitted unless the moving party
unduly delayed or failed to cure, the opposing party would be unduly prejudiced, or the
proposed amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962).
Defendants argue that amendment should be denied based on undue delay, undue
prejudice, and futility. Response [#65] at 1.
First, concerning delay, “[t]he important inquiry is not simply whether Plaintiff has
delayed, but whether such delay is undue.” Minter, 451 F.3d at 1206. The Tenth Circuit
“focuses primarily on the reason for the delay.” Id. A motion to amend is untimely if,
among other reasons, the moving party has made the complaint a “moving target,” is trying
to “salvage a lost case by untimely suggesting new theories of recovery,” is trying to
present more theories to avoid dismissal, or is knowingly waiting until the eve of trial to
assert new claims. Id. at 1206 (citations omitted). Other common reasons for finding
undue delay include lack of adequate explanation for the delay or when a moving party
knows or should have known of the facts in the proposed amendment but did not include
them in the original complaint or any prior attempts to amend. Id. (citations omitted). The
Court credits Plaintiffs’ assertion that they believed that the Complaint adequately averred
the exercise of specific legal rights and pled all six claims against Defendant Denver. The
Court further notes that Plaintiffs acted quickly to correct perceived deficiencies once they
were made aware of them. Under these circumstances, the Court finds that Plaintiffs did
not unduly delay.
Second, as previously noted, the Court may deny a motion to amend based on
undue prejudice to the nonmoving party. See Minter, 451 F.3d at 1205. Defendants
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waived service of the Complaint on February 8, 2011 [#6]. They have had since that date
to address the asserted pleading deficiencies either by conferral with opposing counsel or
by motion, but they failed to do so. Thus, any prejudice to Defendants is at least in part
attributable to their own long delay. Regardless, there is time to cure any perceived
prejudice against Defendants, because Defendants do not convincingly assert that the
requested amendment will require any specific additional discovery,1 a Final Pretrial Order
has not been entered in this matter, and a trial date has not been set. The Court therefore
finds that Plaintiffs’ amendments will not cause Defendants undue prejudice. See Foman,
371 U.S. at 182 (stating that the opposing party must be unduly prejudiced by the proposed
amendment).
Third, concerning futility, an amendment is futile if it would not survive a motion to
dismiss. Innovatier, Inc. v. CardXX, Inc., No. 08-cv-00273PAB-KLM, 2010 WL 148285, at
*2 (D. Colo. Jan. 8, 2010) (citing Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)).
The merits of Plaintiffs’ claims are presently before the District Judge in the form of
Defendants’ motions for summary judgment.
The Court is of the opinion that the
amendments sought are not necessary but will provide additional clarity to Plaintiffs’ claims.
For example, with respect to Defendant Denver, Defendants’ Answer [#12] provides no
indication that they construed only the third claim to apply to Defendant Denver. Rather,
they indicated that all Defendants were answering all claims. See Answer [#12] at 7-10
(using language such as “Defendants incorporate,” “Defendants admit,” and “Defendants
deny” in connection with responding to each claim without designating that they believed
1
Defendants generally state that they will require “additional discovery” based on “new
aspects of the case” but fail to provide any detail on the subject. See Response [#65] at 3.
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only certain claims were made against certain Defendants). See, e.g., Zhu v. Fed. Housing
Fin. Bd., 389 F. Supp. 2d 1253, 1267 n.6 (D. Kan. 2005) (construing the complaint to allege
each claim against each of the defendants). The Court views Defendants’ arguments as
an attempt to gain an undue tactical advantage. Based on this assessment, as well as on
the parties’ apparently shared belief that the proposed amendments will enhance Plaintiffs’
pleading, the Court does not find that amendment would be futile.
The Court therefore finds that justice would be served by permitting amendment of
the Complaint. Accordingly,
IT IS HEREBY ORDERED that the Motion [#61] is GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiffs’
Amended Complaint [#61-19] for filing as of the date of this Order. Defendants shall
respond to the Amended Complaint on or before October 1, 2012.
Dated: September 18, 2012
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