Barringer v. Clackamas County et al
Filing
110
OPINION and ORDER - For the reasons stated, Barringer's motion 100 for leave to amend is DENIED. Dated this 3rd day of May, 2012, by U.S. Magistrate Judge John V. Acosta. (peg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
AGNES LAURIE BARRINGER,
Case No.: 3:09-CV-00068-AC
OPINION AND ORDER
Plaintiff,
v.
CLACKAMAS COUNTY and DEPUTY
ALANA DAVIS,
Defendants.
ACOSTA, Magistrate Judge:
Opinion
Plaintiff Agnes Laurie Barringer ("Barringer") moves for leave to amend the Second
Amended Complaint. The proposed Third Amended Complaint omits claims against two
defendants and adds a § 1983 claim against Clackamas County for violation of Barringer's
constitutional rights pursuant to Monell v. Dep 'f ofSoc. Servo of City ofN. Y, 436 U.S. 658
(1978). Defendants Clackamas County, Deputies Alana Davis, Jill McCloud, and Deiria Dalton
("Defendants") oppose the motion, arguing that good cause does not exist to modi£), the
scheduling order and, alternatively, that justice requires denying the motion for leave to amend.
Background
Barringer filed this suit against Defendants in January 2009 alleging violations of her
constitutional rights, battery, and negligence stemming from an incident where she was restrained
while incarcerated on a charge of contempt of court. Docket Entry 1. Her complaint was
subsequently amended twice, and currently alleges violations of Barringer's constitutional rights,
battery, and negligent hiring, training, or retention. Docket Entry 8; Docket Entry 24.
The court originally scheduled the trial to take place in December 2011, but the court
postponed the trial after Barringer's counsel withdrew representation in April 2011. Docket
Entry 63. New Counsel now represents Barringer, and the court recognized his appearance on
March 28, 2012. Docket! Enby 75. Currently, the trial is currently scheduled to begin on May
14,2012, with the pretrial conference to take place on May 9, 2012.
On April 23, 2012, only tluee weeks before the trial date, Barringer filed a motion for
leave to file a Third Amended Complaint that dismisses claims against Defendants McCloud and
Dalton, and adds a claim against Defendant Clackamas County for violation of Barringer's
Eighth Amendment Rights. Defendants oppose the motion.
Legal Standard
After a responsive pleading has been filed, leave to alllend a complaint may only occur by
leave of the court or consent of the pmiies.
FED.
R. CIV. P. 15(a)(2). Leave to amend is liberally
given, "when justice so requires." Eminence Capital, LLCv. Aspeon, Inc., 316 F.3d 1048, 1052
(9th Cir. 2003); FED. R. Civ P. 15(a)(2).
Discllssion
1. Modifying the Scheduling Order
First, Defendants ask the court to deny the motion for leavc to amend because granting the
motion would require the court to modifY the scheduling order. They contend Barringer has not
demonstrated good cause to modifY the order, so granting the motion would be in error.
In this case, granting leave to amend would require the court to modify the Rule 16
scheduling order. The Federal Rules of Civil Procedure declare that a scheduling order "may be
modified only for good cause and with the judge's consent." FED. R. CIV. P. 16(b)(4). Further, local
rules mandate that "objections to any court imposed deadline must be raised by motion and must:
(1) Show good cause why the deadlines should be modified[;] (2) Show effective prior use of time;
(3) Recommend a new date for the deadline in question[; and] (4) Show the impact ofthe proposed
extension upon other existing deadlines, settings, or schedules." Lyon v. Chase Bank USA, NA., Civ.
No. 07-1779-AC, 2009 WL 3047240, at * 1 (D. Or. Sept. 22, 2009), quoting Distric(of Oregon,
Local Rules of Civil Practice ("LR") 16.3(a) (2006). The primary factor in determining whether
good cause exists is whether the party seeking amendment was diligent in pursuing the amendment.
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (1992). If the party who seeks
modification of the scheduling order did not act diligently in doing so, "the inquiry should end," and
the motion should be denied. Id
Barringer argues that she has been sufficiently diligent in seeking amendment since her new
lawyer has represented her for only on; month. Further, she argues that the proposed i'vionell claim
arises out of the same facts and ultimate issues as the claims previously asserted.
Barringer, however, does not demonstrate the diligence required to show good cause for
modifYing the scheduling order. It is true that Barringer retained her current counsel became
involved only late last month, but the fact remains that her previous counsel withdrew from the case
in April 2011, two years after the case was filed. Barringer did not effectively use that time or act
diligently to file this motion for leave to amend in a timely manner.
Furthermore, modifying the schedule would necessitate delaying the trial. Adding a Monell
claim would require the court to allow Defendants to conduct additional discovery, add witnesses
and exhibits, and amend their pretrial documents. There is no just cause to support such disruption
to the court's scheduling order .
. IV. Motion for leave to amend
Even if Barringer was diligent in seeking counsel and filing this motion, denial of the motion
would be appropriate. The court applies the following factors to determine whether justice requires
granting a motion for leave to amend: (1) undue delay; (2) bad faith or dilatory motive; (3) repeated
failure to cure deficiencies by previous amendment; (4) undue prejudice to the opposing party; and
(5) the futility of the amendment. Eminence Capital, 316 F.3d at 1052, quoting FOil/an v. Davis, 371
U.S. 187, 182 (1962). The Ninth Circuit has ruled that prejudice to the opposing party should be
given the most weight, and "[a]bsent prejudice, or a strong showing of any of the remaining Foman
factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Id
Here, nearly all of the FOlllal! factors weigh in favor of Defendants. First, as explained
previously, there was undue delay by Barringer in seeking replacement counsel. Second, this motion
appears, in part, to have a dilatory motive in order to give counsel additional time to prepare for trial.
Third, there have been repeated failures to cure deficiencies by previous amendment, as Barringer
has already filed two amended complaints that failed to include the Monell claim that she now
asserts. Finally, Defendants would be prejudiced if the court were to delay trial a second time, as
granting the present motion would likely require the Defendants to introduce additional witnesses
and evidence at a late stage in the case.
The final factor, whether the amendment would be futile, weighs in favor of Barringer. Tn
the proposed Third Amended Complaint, she properly pleads a }vionell claim against Defendants that
would likely survive a motion for failure to state a claim upon which relief can be granted. "Our
circuit precedent ... requires plaintiffs in civil rights actions against local governments to set forth
no more than a bare allegation that government officials' conduct conformed to some unidentified
government policy or custom." AE ex reI. Hernandez v. COllnly of Tulare, 666 F.3d 631, 637 (9th
Cir. 2012). The fact that Barringer asserts a cognizable claim, however, does not overcome the other
four factors that weigh in favor of Defendants. Accordingly, the motion for leave to amend is denied
and the Rule 16 scheduling order will remain in place.'
Conclusion
For ~~ ~Tsons stated above, Barringer's motion fjea)e to ,:IJ/-nendDENTED.
is
Dated this\")
day of May 2012
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I JOHN v. AcohA
I
Unl!~d States Magistrate Judge
'Barringer expressed her discomfort with the prospect of asking a jury to find that Deputy
Davis's actions violated her constitutional rights despite the fact that Davis was complying with
Clackamas County Policy. The court recognizes this difficult situation, and will permit Barringer
to submit supplemental jury instructions regarding the relevance or irrelevance of existing
Clackamas County policy on the constitutionality of Deputy Davis's actions.
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