Parga et al v. Tulsa County et al

Filing 256

OPINION AND ORDER by Magistrate Judge Jodi F Jayne ; setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 3/10/2021 at 10:00 AM before Magistrate Judge Jodi F Jayne); granting in part and denying in part 224 Motion to Amend; finding as moot 225 Motion to Intervene (Re: 210 MOTION to Compel Compliance with a Subpoena and Opening Brief in Support of Motion, 235 MOTION for Protective Order ) (sdc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
RICHARD FELTZ, et al., on behalf of
himself and all other similarly situated,
Plaintiff,
v.
BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY
OF TULSA, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 18-CV-0298-CVE-JFJ

OPINION AND ORDER
Before the Court are Plaintiff’s Second Motion to Amend the Complaint (ECF No. 224);
Ashton Dennis’s Motion to Intervene (ECF No. 225); and the brief supporting both motions (ECF
No. 226). The motions were referred to the undersigned.
I.

Background
The remaining named Plaintiff is Richard Feltz (“Feltz”). Currently named Defendants are

Board of County Commissioners of Tulsa County (“County”); Vic Regalaldo, Tulsa County Sheriff,
in his official capacity (“Sheriff”); William Lafortune, in his official capacity as Tulsa County
District Court Judge (“Presiding Judge”); and current and former Tulsa County Special Judges, in
their official capacities, who were special judges at the time the Complaint was filed in June 2018
(“Special Judges”) (collectively “State Judges”).
Relevant to the Court’s analysis are the following facts.1 Feltz was allegedly subjected to
unconstitutional bail-setting procedures in Tulsa County District Court in June 2018. Feltz seeks

1

The district judge summarized the factual allegations in the First Amended Complaint (“FAC”) in an
Opinion and Order dated March 15, 2019, ECF No. 48, and summarized factual developments in an
Opinion and Order dated May 11, 2020, ECF No. 191. This Order assumes familiarity with such facts,
and the Orders are incorporated herein by reference.

certification of a class defined as “[a]ll people who are or will be detained in the Tulsa County Jail
because they are unable to pay a secured financial condition of release.” FAC, ECF No. 32 at ¶ 112.
Based on prior rulings in the case, Feltz’s remaining claims are: (1) Presiding Judge, Sheriff,
and County violate his equal protection and due process rights against wealth-based detention by
jailing him because he cannot afford a monetary payment (“count 1”); and (2) all Defendants violate
his right to pretrial liberty by jailing him without providing procedural due process (“count 2”). Feltz
seeks prospective injunctive and declaratory relief against Presiding Judge, Sheriff, and County.
Feltz seeks only prospective declaratory relief against Special Judges. See ECF No. 48.
After the case was filed, the “bond docket” was created in October 2018. Creation of the
bond docket altered the challenged policies and procedures. In August 2019, Local Criminal Rule 2
was passed, which contains the current procedures. See ECF No. 191. The FAC does not reflect
these changes, and there is currently no named plaintiff who appeared on the bond docket created in
October 2018.
With respect to scheduling, the district judge set a schedule with deadlines for joinder of
parties, written discovery, deposition discovery, and dispositive motions. ECF No. 69, 70.2 The
deadline for joinder of additional parties expired July 15, 2019 and has not been extended. ECF No.
69. After resolution of discovery disputes and a motion for preliminary injunction, the parties agreed
to a new scheduling order governing combined class certification and merits discovery, which set
deadlines for fact discovery, expert discovery, and dispositive motions. ECF No. 196.3

2

The class certification motion was already pending, and the parties were to move for a class
certification hearing after reaching stipulations and/or conducting adequate class certification
discovery. The parties failed to reach stipulations and are now completing class certification and merits
discovery.
3

This schedule has been extended by joint request of the parties, and recently over State Judges’
objection.

2

The parties have engaged in discovery regarding relevant policies and procedures in place
from June 2018 to the present, including written and deposition discovery. State Judges filed two
pending Rule 12(b)(1) motions raising factual challenges to subject matter jurisdiction. ECF No.
104 (challenging Feltz’s standing to assert claims against certain Special Judges); ECF No. 157
(challenging whether Feltz’s claim is moot due to policy changes after lawsuit filed).
According to the proposed Second Amended Complaint (“SAC”), on December 16, 2020,
proposed plaintiff Ashton Dennis (“Dennis”) was jailed after a bond hearing before Special Judge
Tanya Wilson. ECF No. 226-1 at ¶¶ 28-34. On December 20, 2020, approximately one month prior
to the fact discovery deadline of January 25, 2021, Feltz filed the current motion to amend under
Rule 15(a). Dennis filed the current motion to intervene under Federal Rule of Civil Procedure 24(a)
and (b). The Court grants the motion to amend, including adding Dennis as a plaintiff, with
modifications explained below. The Court does not reach Dennis’ motion to intervene.4
II.

Motion to Amend
Feltz seeks to amend the FAC pursuant to Federal Rule of Civil Procedure 15(a)(2) or Rule

15(d), for the purposes of: (1) adding Dennis as a named plaintiff and class representative; and (2)
updating factual allegations. Feltz submitted a redlined version of the SAC, showing all proposed
changes. ECF No. 226-1. State Judges filed an objection to amendment, arguing undue delay, undue
prejudice, and futility.
A.

Legal Standards

After a scheduling order deadline, a party seeking leave to amend must demonstrate: (1) good
cause for seeking modification under Federal Rule of Civil Procedure 16(b)(4), and (2) satisfaction

4

Because the Court grants the motion to amend seeking the same relief as the motion to intervene, the
Court denies the motion to intervene as moot. See Archuleta v. City of Santa Fe, No. CV 13-363
JAP/SCY, 2014 WL 12782788, at *1 n.2 (D.N.M. Dec. 22, 2014) (denying motion to intervene as
moot, where court granted motion to amend seeking same result).

3

of the Rule 15(a) standard. Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass’n, 771 F.3d 1230,
1240 (10th Cir. 2014). Rule 16(b)(4) provides that a schedule may be modified only for good cause
and with the judge’s consent. Fed. R. Civ. P. 16(b)(4).5 Rule 15(a)(2) provides that “the court should
freely give leave when justice so requires.” Id. Denial of leave to amend is appropriate in cases of
“undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [or] futility of amendment.” Foman v. Davis, 83 S. Ct. 227, 230
(1962). Whether a nonmovant will suffer undue prejudice is the most important factor in the Rule
15(a)(2) analysis. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006).
With respect to futility, a proposed amendment is futile if the amended complaint would be
subject to dismissal under Federal Rule of Civil Procedure 12(b)(6). Fields v. City of Tulsa, 753
F.3d 1000, 1012-13 (10th Cir. 2014). Because a futility analysis relies upon a Rule 12(b)(6) standard,
a court may not consider evidence outside the pleadings. Jeter v. Wild W. Gas, LLC, No. 12-CV411-TCK-PJC, 2015 WL 5970992, at *4 (N.D. Okla. Oct. 14, 2015).
B.

Analysis

Considering relevant legal standards and all facts and circumstances surrounding this
proceeding, the Court grants the motion to amend as explained below.
1.

Judicial Economy/Interests of Justice

Amendment serves the interest of judicial economy. The case has proceeded against
Defendants since 2018, including discovery on the procedures to which Feltz was subjected and the
current procedures to which proposed plaintiff Dennis was subjected. It serves judicial economy to
permit putative class members who are or will be detained under the current procedures to assert

5

Due to overlapping considerations, the Court addresses good cause/undue delay together below in
Part II.B.3.

4

their claims in the current litigation, rather than require them to file a separate class action to protect
their rights. See Archuleta v. City of Santa Fe, No. CV 13-363 JAP/SCY, 2014 WL 12782788, at
*5 (D.N.M. Dec. 22, 2014) (permitting amendment to add new plaintiff to putative class action where
proposed amendment arises out of same subject matter and involves same defendant, because
amendment “promotes efficiency and reduces costs by allowing Plaintiffs to bring related claims in
one proceeding rather than requiring . . . a separate class action”). Adding Dennis as a plaintiff and
updating the factual allegations to include current procedures is the most practical way to proceed,
considering how this litigation has evolved after filing. All issues presented by the FAC and the
proposed SAC should be resolved in this single action rather than piecemeal litigation.
Amendment serves the interest of justice. While Feltz maintains his claims are not moot (as
he has throughout the case), he now desires to add a plaintiff who has been subjected to the current
procedures and update his allegations to reflect these procedures. This is a permissible basis for
adding named plaintiffs in putative class actions prior to or during the class certification process.
See id. (explaining that courts in the Tenth Circuit have taken liberal approach to permit substitution
of new class representatives at various stages in the proceeding); In re Thornburg Mortg., Inc. Sec.
Litig., 265 F.R.D. 571, 581 (D.N.M. 2010) (permitting amendment where class allegations already
existed, and plaintiffs requested to add a representative plaintiff to address standing concerns);
Lindley v. Life Inv’rs Ins. Co. of Am., No. 08-CV-0379-CVE-PJC, 2009 WL 2601949, at *4 (N.D.
Okla. Aug. 20, 2009) (reasoning that, “if it becomes clear that class certification is appropriate but
plaintiff is not a suitable class representative, plaintiff may pursue his individual claims to
completion and a new class representative may be substituted”). Amendment avoids injustice to
putative class members who were allegedly unlawfully detained based on the current policies.

5

2.

Undue Prejudice

State Judges will not suffer undue prejudice from the permitted amendments. The proposed
SAC contains new factual allegations regarding creation of the bond docket, see proposed SAC ¶¶
5, 21, 41, 42, 66, 88-92, and the current procedures to which Dennis was subjected in December
2020, id. ¶¶ 27-34. The proposed SAC shifts wording in key respects to reflect policy changes after
the case was filed, such as alleging that putative class members are not offered “constitutional”
process, rather than alleging putative class members are not offered “any” process. See, e.g.,
Proposed SAC, ECF No. 226-1 at ¶ 135. The proposed SAC does not alter the class definition, the
alleged common questions of fact and law related to counts 1 and 2, or the wording of counts 1 and
2. The proposed SAC contains only minor changes to the injunctive and declaratory relief requested.
See, e.g., id. at ¶ 148(a) (seeking injunction against “using secured financial conditions of release to
detain Plaintiffs and class members without ensuring a due-process compliant inquiry,” where
language used to allege “without ensuring an inquiry”) (emphasis added).
State Judges have been on notice of the need to defend and litigate the constitutionality of
current policies based on Feltz’s mootness defense. The constitutionality of current procedures are
already presented in pending motions. See ECF No. 157. The updated factual allegations and
addition of Dennis as a named plaintiff arise out of the same subject matter and will not prejudice
State Judges in preparing their defense. See Minter v. Prime Equipment Co., 451 F.3d 1196, 1208
(10th Cir. 2006) (stating that courts typically find prejudice when amendment unfairly affects the
defendants in terms of preparing their case). Nor will the permitted amendments substantially
change the issues already being litigated. Nor will the permitted amendments delay the proceedings
or expand the scope of discovery. Feltz represents he will not seek additional discovery, Dennis was
already deposed (out of an abundance of caution), and State Judges have not stated they will need to

6

pursue additional discovery based on amendment. The Court finds no undue prejudice.6
3.

Failure to Meet Deadline/Undue Delay

With respect to delay, Feltz argues that: (1) the challenged policies have evolved post-suit,
and State Judges first filed their Rule 12(b)(1) motion to dismiss on mootness grounds on April 2,
2020; and (2) while Feltz has consistently maintained (and still maintains) that his claims are not
moot, he now seeks to avoid waste of a “substantial amount of litigation effort that would be lost in
the unlikely event that the court adopts [State Judge’s] mootness arguments.” ECF No. 226 at 12.
Feltz also urges the Court to exercise its broad discretion to amend deadlines and control the pretrial
phase of litigation. Id. State Judges argue Feltz has been aware of potential mootness problems
since October 2018, and specifically aware of mootness problems posed by Local Criminal Rule 2
at least by April 2020, but failed to diligently pursue amendment.7
Exercising its discretion over deadlines and amendment of pleadings, the Court: (1) finds
good cause for extending the amendment deadline under Rule 16(b)(4), and (2) finds that Feltz’s
delay in seeking amendment does not warrant denial of amendment, considering all Rule 15(a)(2)
considerations. State Judges first filed a Rule 12(b)(1) mootness challenge in April 2020, which was
premised in part on Local Criminal Rule 2’s constitutionality. See ECF No. 157. Although Feltz
was certainly aware of potential mootness problems before that time, these intervening events, which
made the policy changes more permanent, provide good cause for Feltz electing not to seek
amendment by the July 15, 2019, deadline. The closer question is whether the additional delay until

6

State Judges will suffer some prejudice based on addition of Dennis. State Judges asserted two Rule
12(b)(1) factual attacks on the FAC related to mootness and standing, which will be moot if the Court
permits filing of the SAC. This prejudice does not warrant denial of amendment in this case. See In
re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. 571, 582–83 (D.N.M. 2010) (payment of fees to
litigate issues that might eventually become moot does not weigh heavily against permitting
amendment).
7

State Judges do not argue Feltz or his counsel acted with a bad-faith motive in delaying amendment.

7

December 2020 warrants denial of amendment under Rule 15(a)(2). While the Court would likely
be within its discretion to deny amendment based on this period of delay, the Court declines to do
so based on other factors. In this case, Feltz maintains his claims are not moot and that he may serve
as a named class representative for purposes of seeking the prospective injunctive relief requested in
both the FAC and the proposed SAC. There was not a defining event that triggered the motion to
amend, except Feltz’s counsel’s litigation decision as to timing. Feltz risked his claim being deemed
moot for some time but has now elected to seek amendment to add a plaintiff subjected to the current
procedures. The Court finds that some original delay was reasonable while policies evolved postsuit, and finds that the remaining delay does not outweigh other Rule 15(a)(2) factors favoring
amendment. Specifically, there is no undue prejudice to State Judges, and the interests of justice to
putative class members and judicial economy weigh strongly in favor of allowing amendment.
4.

Paragraph 91 – Failure to Train

Although the Court permits amendment, one allegation in the proposed SAC is untimely and
unduly prejudicial. Specifically, the proposed SAC alleges that Presiding Judge “has prepared and
provided no formal, regular training or evaluation for Special Judges overseeing the bond docket.”
Proposed SAC, ECF No. 226-1 at ¶ 91. State Judges argue this is an attempt to assert a new
constitutional claim or theory of relief against Presiding Judge, independent of counts 1 and 2. In
their reply brief, Feltz did not deny that this allegation is a separate claim for relief against Presiding
Judge. Instead, Feltz argued that his “failure to train” theory of liability is not “new,” and that it
survives a Rule 12(b)(6) analysis. See ECF No. 245 at n.5.
The Court finds that proposed ¶ 91 is an attempt by Feltz to assert a new claim or theory of
liability based on Presiding Judge’s actions of failing to train Special Judges. This is untimely and
unduly prejudicial, because State Judges were not on adequate notice they were defending a “failure
to train” claim during the discovery process.

The Court rejects Feltz’s argument that any

8

independent “failure to train” claim was subsumed in the FAC’s general assertion that Presiding
Judge exercises supervisory authority over the bond docket and initial appearances. The Court also
rejects Feltz’s argument that, because Feltz conducted discovery on training of Special Judges,
amendment should be permitted. Although Special Judges’ training is relevant to the factual
question of how they conduct the bond docket and whether they follow any uniform set of rules or
policies at the direction of Presiding Judge, this does not equate to adequate notice that Feltz intended
to assert an independent “failure to train” claim against Presiding Judge. In contrast to updated
allegations relevant to existing constitutional claims, the updated “allegations” in ¶ 91 seek to create
a new method of holding Presiding Judge liable for constitutional violations.
Further, as the parties’ futility arguments indicate, Feltz intends to treat this as an independent
“claim” for relief that would be subject to a Rule 12(b)(6) motion or dispositive motion. These issues
were not raised by State Judges in the first round of Rule 12(b)(6) briefing, because the claim was
not clearly asserted or at issue in the FAC. “Failure to train” is a term of art in 42 U.S.C. § 1983
litigation that triggers a host of constitutional questions and legal doctrines. It is unduly prejudicial
to force State Judges to newly defend this claim. This ruling does not intend to limit evidence that
may be presented regarding how Special Judges conduct the bond docket, including any training
they did or did not receive.
5.

Futility

State Judges appear to assert five futility arguments: (1) the proposed SAC asserts previously
dismissed claims; (2) the proposed SAC names only “Presiding Judge” and “Special Judges” rather
than individual names of judges, which contravenes Ex Parte Young; (3) Younger abstention applies;

9

(4) neither Feltz nor Dennis have a live case or controversy; and (5) any “failure to train” claim fails
to state a claim for relief.8
a.

Dismissed Claims

The Court will not permit Feltz to assert any previously dismissed claims or related prayers
for relief, and these shall be excluded from the SAC. Feltz contends that he included dismissed
claims only for purposes of preservation, and he agrees to remove dismissed claims from the SAC
if directed to do so. See ECF No. 245 at 3 n.3. This futility argument is moot.
b.

Ex Parte Young Compliance

The Court agrees with State Judges that actual state officials must be named for purposes of
the Ex Parte Young doctrine, rather than official titles such as “Presiding Judge.” See Hill v. Kemp,
478 F.3d 1236, 1255-56 (10th Cir. 2007) (explaining that Ex Parte Young permits suits “aimed
against state officers acting in their official capacities” under “admitted fiction” that injunction
against state employee in official capacity is distinct from suit against state itself). Feltz does not
dispute that Presiding Judges and Special Judges are sued in their official capacities, or that “the
originally named judicial defendants have been automatically and continuously substituted by
operation of Rule 25(d) with new officials who have come to carry out relevant duties.” ECF No.
245 at 8. Feltz also does not object to individually naming the current Presiding Judge and the current
Special Judges on the bond docket rotation, recognizing that substitution will be necessary in the
event these state officials change prior to the issuance of any relief. Id. at 8-9. The SAC shall name
William LaFortune, as the current Presiding Judge, and shall name all Special Judges currently on
the bond docket rotation.9 When and if the names of the Presiding Judge change, or the names of

8

State Judges’ “futility” arguments are not delineated by headings or clearly outlined. The Court has
endeavored to address all points raised.

9

The parties shall confer to ensure names of Special Judges are correct on the case caption.

10

Special Judges conducting the bond docket change, State Judges shall notify the Court of the need
for omission or substitution under Rule 25(d).
c.

Younger Abstention

The district judge has already addressed Younger abstention. The court held that “Plaintiffs
challenged the alleged wealth-based detention system and the legality of pretrial detention
procedures and practices,” and that this challenge “cannot be raised in defense of any plaintiff’s
criminal prosecution.” ECF No. 48 at 13. The proposed SAC continues to challenge the wealthbased detention system and the legality of pretrial detention procedures and practices. The same
Younger analysis applies to a Rule 12(b)(6) challenge to the SAC.
d.

Live Case or Controversy

State Judges argue that Feltz and Dennis “lack a live actual case or controversy for different
reasons, mootness for [Feltz] and lack of standing for [Dennis].” ECF No. 236 at 12. Upon
consideration of State Judge’s limited arguments, the Court cannot conclude that Feltz’s claim fails
a Rule 12(b)(6) “mootness” analysis. State Judges did not cite to or challenge specific jurisdictional
allegations in the proposed SAC. They appear to rely instead on their own factual assertions
regarding the dissimilarities between the June 2018 policies and the current policies, and factual
assertions regarding which judges are capable of providing a remedy. See ECF No. 26 at 13.
Consistent with these arguments, State Judges previously filed a Rule 12(b)(1) factual attack on
subject matter jurisdiction on grounds of mootness of Feltz’s claim. See ECF Nos. 157, 173, 188
(briefing on mootness). These issues will likely require resolution, but they cannot be resolved based
on the limited futility arguments asserted in response to the motion to amend.
With respect to Dennis’ standing, State Judges refer the Court to their arguments on the
motion to intervene. These arguments are limited to Dennis’ lack of standing to pursue a Sixth
Amendment claim. See ECF No. 236 at 16. The Sixth Amendment claim has previously been

11

dismissed by the district judge, and the Court will not permit these dismissed claims to be included
in the SAC. This standing argument is therefore moot.
e.

Failure to Train

The Court found this proposed amendment untimely and unduly prejudicial, and it will not
be permitted. This futility argument is therefore moot.
III.

Conclusion
The Court Orders as follows:
1.

Plaintiff’s Second Motion to Amend the Complaint (ECF No. 224) is GRANTED in

part and DENIED in part as set forth herein.10 Dennis’ Motion to Intervene (ECF No. 225) is
DENIED as moot.
2.

By March 3, 2021, Feltz may file a Second Amended Complaint in the form attached

as Exhibit 1 to the motion to amend, with the following modifications:
a. Feltz shall individually name William LaFortune, in his official capacity as Presiding
Judge of the District Court for Tulsa County;
b. Feltz shall individually name all Special Judges who conduct the bond docket on
rotation, in their official capacities as Special Judges of the District Court for Tulsa
County;
c. Feltz shall exclude proposed ¶ 91;
d. Feltz shall exclude previously dismissed claims and related prayers for relief.
3.

Plaintiff’s Motion to Compel Compliance with Subpoena (ECF No. 210) and State

Judges’ Motion for Protective Order (ECF No. 235) are set for telephone conference on Wednesday,
March 10, 2021, at 10:00 am. The parties should also be prepared to discuss deadlines for filing new

10

Upon Feltz’s filing of the SAC, the district judge will moot the following motions, without prejudice
to refiling: ECF Nos. 3, 104, and 157.
12