Opinion
1:18-cv-01093-CL
03-22-2023
JONELL GRAINGER, personal representative of the Estate of JOSHUA TODD FISCHER, Plaintiff, v. JOHN ENSLEY, ROBIN KATTER, and DYLAN ROBERTS, in their individual capacities, and CURRY COUNTY and JOHN WARD, in his official capacity as Sherriff of Curry County, Defendants.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Plaintiff's motion (#130) to strike affirmative defenses or alternatively to grant partial summary judgment as to the County defendant's Answer. For the reasons below, the motion should be granted in part and denied in part.
DISCUSSION
1. Factual Summary
On April 21, 2017, at approximately 8:08 p.m., Curry County Deputy John Ensley and Oregon State Troopers Robin Katter and Dylan Roberts, responded, to a grassy area adjacent to Highway 101 at the South Bank of the Chetco River, in Harbor, Oregon for a welfare check on Joshua Fischer, who had been reported by a concerned citizen via 9-1-1 call to be screaming and yelling for help and laying in tall grass. The officers observed Fischer to be highly intoxicated' and distraught. After speaking with Fischer and running him for wants and warrants, the officers released him to leave the area on foot. Sometime before 9:05 p.m., Fischer died by suicide, shooting himself in the head. The facts are discussed in more detail in the Court's previous Findings and Recommendation (#96).
II. Procedural Background
This case was filed on June 21, 2018. An amended complaint was filed on August 10, 2018, and the County defendants filed an Answer on September 4, 2018. The State defendants filed a Motion to Dismiss on September 4, 2018. That motion was briefed and oral argument was held, and the Court issued a Findings and Recommendation (“F&R”) (#35) on February 15, 2019. District Judge Michael McShane adopted that F&R (#35) in full on May 6, 2019, in an Order (#47) granting in part and denying in part the-State defendants' motion to dismiss. In the Order (#47), Plaintiff was given leave to file a Second Amended Complaint to properly specify the amount of damages sought against the individually named defendants. The Second Amended Complaint (#48) was filed by May 23, 2019.
On June 4, 2019, the Court granted a motion for the extension of case deadlines, which included a date for the defendants to respond to the Second Amended Complaint, set for June 24, 2019. On June 6, 2019, the County defendants filed a Motion to Dismiss under FRCP 12(b)(6). The briefing was completed on July 11, 2019, and the Court issued an F&R (#60) on July 26, 2019, recommending that the Motion to Dismiss be granted in part and denied in part. Judge McShane adopted the F&R (#60) in full on August 27, 2019. In between the issuance of the F&R #60) and the Order (#68) adopting it, the State defendants filed a Motion for Summary Judgment on August 15, 2019.
On September 18, 2019, the County defendants filed a Motion for Summary Judgment and Motion for Joinder in the summary judgment motion that had been filed by the State defendants. The briefing deadlines for the two motions for summary judgment were extended several times, and ultimately the Court held an oral argument hearing on both motions on January 23, 2020. The Court issued an F&R (#96) on March 26, 2020, recommending that the State defendants' motion be denied, and the County defendants' motion be granted in part and denied in part. On June 3, 2020, the State defendants filed an Answer (#104) to Plaintiffs Second Amended Complaint. County defendants did not file an Answer.
On November 12, 2020, Judge McShane issued an Order (#105) declining to adopt the F&R (#96), instead granting the defendants' motions in their entirety, dismissing the case, and entering judgment (#106). On November 24, 2020, Plaintiff filed a Notice of Appeal to the Court of Appeals for the Ninth Circuit (#107).
On May 6, 2022, the Ninth Circuit issued a Memorandum(#l 18) ordering that the decision of the District Court be reversed and remanded; the Mandate (#119) following that opinion was entered on June 1,2022. Thereafter, upon request from the Court, the parties filed a Joint Status Report with new proposed/case deadlines, and the County defendants filed their Answer (#123) to Plaintiffs Second Amended Complaint on July 22, 2022. The Court adopted the proposed dates and granted Plaintiffs request to have 60 days from August 3,2022, to file a motion against the affirmative defenses contained in the County defendants' new Answer. The Motion to Strike (#130) was filed on October 10, 2022. Trial in this case is set for June 26, 2023, in Medford, Oregon, before District Court Judge Michael McShane.
The Answer (#123) to Plaintiff's Second Amended Complaint, filed by the County in July, 2022, contains eleven (11) affirmative defenses:
1. Comparative fault caused by Joshua Fischer himself.
2. Comparative Fault by unnamed 3rd parties.
3. Comparative Fault by the Plaintiff, Joshua Fischer's mother, Jonell Grainger.
4. The OTCA limits Plaintiff's remedy to the County and requires dismissal of individual defendants.
5. Discretionary Immunity.
6. Damages limited by the OTCA.
7. Joshua Fischer's suicide was an independent intervening cause of death.
8. Comparative fault of all other parties to the litigation.
9. Joshua Fischer had a “legal right to take his own life;” others cannot be held liable for that action.
10. ORS 430.399 is unconstitutional and cannot be used as the standard of care for statutory liability.
11. ORS 430.399 is unconstitutional and cannot be used as the standard of care for a common law negligence claim.
Plaintiff challenges all of the above affirmative defenses except (1), (4), and (6).
III. Motions filed by the defendants qualified as “required responses” to the Amended Complaint, therefore the Answer (#123) was timely filed.
Plaintiff moves to strike the affirmative defenses on grounds that the Answer (#123) was untimely filed. Federal Rule of Civil Procedure 15 states that, “Unless the court orders otherwise, any required response to an amended pleading must be made within the time . remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.” Fed.R.Civ.P. 15(a)(3). Plaintiffs Second Amended Complaint was filed on May 23, 2019; therefore, under Rule 15 the County defendants' Answer was due on June 6, 2019. Instead, the Answer (#123) was filed over three years later, on July 22, 2022.
Plaintiff argues that other courts have found that the filing of a motion to dismiss does not toll the time to file an Answer within the time given by Rule 15(a)(3). General Mills, Inc. v. Kraft . Foods Global, Inc., 495 F.3d 1378, 1379 (Fed. Cir. 2007). However, courts in this circuit have not found that case persuasive. See Tenser v. Ryan, 2020 WL 4760192, at *4 (C.D. Cal. May 26, 2020), report and recommendation adopted, 2020 WL 5946078 (C.D. Cal. Oct. 7, 2020), affd sub nom. Tenser v. Silverman, 2021 WL 4958986 (9th Cir. Oct. 26, 2021) (finding that General Mills, a Federal Circuit case, is not binding on this Court in the instant non-patent action). Moreover, the language of Rule 15 has been amended since the ruling in General Mills, making' that interpretation of the rule even less persuasive. See id., (discussing the amendment). Here, the Motion to Dismiss and later Summary Judgment motions were adequate “required responses” timely filed by the defendants in lieu of an Answer.
After the Second Amended Complaint was filed, the Court set a “deadline to respond” for June 24, 2019, and the County defendants timely filed a Motion Dismiss on June 6, 2019. That motion was briefed and argued, and it was resolved by the Court on August 27, 2019. The County defendants then filed a Motion for Summary Judgment on September 18, 2019, which was eventually resolved in their favor. The County defendants may have technically been required to file an Answer during the pendency of the motion to dismiss and the motion for summary judgment, but no specific “Answer” date was set, and the Court finds that it was not unreasonable for the County defendants to believe that the motions sufficiently “responded” to the Second Amended Complaint. After the case was reversed and remanded on appeal, the County defendants filed their Answer. The Court does not find an unreasonable delay associated with that filing.
IV. County defendants should have sought leave to amend their Answer to add new affirmative defenses.
Plaintiffs assert that the new affirmative defenses contained in the Answer (#123) are improper because the Second Amended Complaint did not change the theory of the case or add any new allegations, except to specify damages. Other district courts that have considered this issue have explained that, a defendant may not plead new counterclaims or affirmative defenses: as of right unless the plaintiffs amendments changed the scope or theory of the case. Childress v. Liberty Mat.'Fire Ins. Co., No. C10-059RSL, 2011 WL 2071200, at *1 (W.D. Wash. May 25, 2011) (discussing cases); Upek, Inc. v. Authentec, Inc., 2010 WL 2681734 at *3 (N.D.Cal.2010); E.E.O.C. v. Morgan Stanley & Co., Inc., 211 F.R.D. 225, 227 (S.D.N.Y.2002) (“If every amendment, no matter how minor or substantive, allowed defendants to assert counterclaims or defenses as of right, claims that would otherwise be barred or precluded could be revived without cause. This would deprive the Court of its ability to effectively manage the litigation”); Carr v. Hazelwood, 2008 U.S. Dist. LEXIS 81753 at *10, 2008 WL 4556607 (W.D.Va.2008) (explaining that the plaintiff “cannot now, as a matter of right, add a previously unmentioned affirmative defense in response to an amended complaint that in no way changes [plaintiffs] theory of the case”); Elite Entm't, Inc. v. Khela Bros. Entm't, 227 F.R.D. 444, 446-47 (E.D.Va.2005) (explaining that an amended response “may be filed without leave only when the amended complaint changes the theory or scope of the case, and then, the breadth of the changes in the amended response must reflect the breadth or the changes in the amended complaint.).
The Court agrees that the scope of the County defendants' Answer (#123) exceeds the scope of changes contained in the Second Amended Complaint, as compared to the previous complaint and answer. The Second Amended Complaint did not change the scope or theory of the case; it merely specified the damages alleged against the individually named defendants. The County defendants' original 2018 Answer included just three affirmative defenses, and one reservation of the right “to allege contributory negligence should discovery prove that the affirmative defense is available.” The 2022 Answer, by contrast, includes eleven affirmative defenses. Four of these relate to comparative fault, as reserved in the original Answer, but at least five of the new affirmative defenses do not, nor do they relate to any of the other the original affirmative defenses. Because the Second Amended Complaint did not substantively change the allegations or the scope of the litigation, the County defendants were required to seek leave of the Court to add their new affirmative defenses. The Court therefore considers whether to grant leave to do so. See Childress, 2011 WL 2071200, at *2 (W.D. Wash. May 25, 2011) (“It would unduly waste time and resources to strike the new claims and require the party to file a motion raising the same issues already before the Court.).
V. Leave to amend the County defendants' Answer to add affirmative defenses is granted in part and denied in part.
“The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). The Court considers four factors in deciding whether to grant leave to amend: “bad faith, undue delay, prejudice to the opposing party, and the futility of amendment.” Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994) (overruled on other grounds by City of Dearborn Heights Act 345 Police & Fire Ret. Sys. v. Align Tech., Inc., 856 F.3d 605, 616 (9th Cir. 2017)). Plaintiffs do not assert that the County defendants are amending their Answer in bad faith. The Court will thus address the other three factors.
1. Delay
“Although delay is not a dispositive factor in the amendment analysis, it is relevant, especially when no reason is given for the delay.” Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999) (citations omitted). “A need to reopen discovery and therefore delay the proceedings supports a district court's finding of prejudice from a delayed (motion to amend the complaint.” Id. at 986 (citing Solomon v. N. Am. Life & Cas. Ins. Co., 151 F.3d 1132,1139 (9th Cir.1998)).
The parties dispute whether the County defendants delayed in adding their new affirmative defenses. Plaintiffs argue that they delayed over three years, well past the time that discovery was completed and dispositive motions had been resolved. However, as County defendants note, various motions were pending, providing a just reason for the delay, and a 60 day window for new discovery was granted after the appeal was remanded, thus the delay was not as prejudicial as it would have otherwise been. This additional discovery window does not solve all of the prejudice or the pleading deficiencies of the newly added affirmative defenses, however, and those will be addressed individually below, along with the futility of each affirmative defense.
2. Prejudice and futility of each affirmative defense.
A proposed amendment is futile if it would immediately be subject to dismissal. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir.1998). Thus, the “proper test to be applied when determining the legal sufficiency of a proposed amendment is identical to the one used when considering the sufficiency of a pleading challenged under Rule 12(b)(6).” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir.1988). Indeed, where a motion challenges the factual sufficiency of the pleaded defenses, the court may properly apply the Twombly!Iqbal standard. Hayden v. U.S., 147 F.Supp.3d 1125, 1128 (D. Or. 2015) (discussing Bell Atlantic ~ Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)). Similarly, an affirmative defense is pleaded insufficiently when it “fails to comply with Rule 8 pleading requirements by not providing ‘plaintiff [with] fair notice of the nature of the defense' and the grounds upon which it rests.” Hayden, 147 F.Supp.3d at 1127 (quoting Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979)). Fair notice requires that defendant “state the nature and grounds for the affirmative defense ... clearly enough that the plaintiff is not a victim of unfair surprise.” Roe v. City of San Diego, 289 F.R.D. 604, 608 (S.D. Calif. 2013) (internal quotations and citation omitted).
In this case, the parties have already litigated motions to dismiss and summary judgment motions, and the case is headed to trial in a few, short months. Therefore, if the Court finds that certain affirmative defenses are futile or insufficiently plead such that they fail to provide fair notice of the nature of the defense, the Court will consider such insufficiency to be prejudicial to the Plaintiff and recommend that leave to amend be denied.
a. Leave to amend and add the second and eighth affirmative defenses, (comparative fault of unnamed third parties) should be denied.
The second and eighth affirmative defenses allege that Joshua Grainger's death was caused by “a person or persons who are not a party in this matter,” and “the fault of others over whom Defendants had no control.” The Court agrees with Plaintiff that both of these allegations fail to give sufficient notice of the person and the conduct alleged to have contributed to the death of Joshua Grainger. Allowing these affirmative defenses would subject Plaintiff to unfair surprise, thus, would be overly prejudicial. Whether or not the County defendants can properly raise these or similar issues at trial will need to be determined by the trial court, but for now, they must be stricken as affirmative defenses. Leave to amend should be denied.
b. Leave to amend and add the third affirmative defense (comparative fault of Jonell Grainger) should be granted.
The third affirmative defense alleges that Jonell Grainger intentionally lied to her son before his death, telling him that his girlfriend was cheating on him, when she knew that to be false. Defendants assert that Ms. Grainger knew that this falsehood made Joshua Grainger extremely upset and distressed, and they claim that her failure to seek treatment for him contributed to his death. Plaintiff contends that there is no evidence that Ms. Grainger knew that the information she gave to her son about his girlfriend was false. This is a factual dispute that should be resolved at trial. The pleading gives a sufficient statement of the alleged facts to give notice to Plaintiff, and Plaintiff has been aware of this theory since the parties conducted depositions. This affirmative defense is not futile, nor is it insufficiently pled or unreasonably prejudicial. Defendants should be granted leave to amend to include this affirmative defense.
c. Leave to amend and add the fifth affirmative defense (discretionary immunity) should be denied.
Discretionary immunity applies to actions that embody “a choice among alternative public policies by persons to whom responsibility for such policies have been delegated.” Miller v. Grants Pass Irrigation District, 297 Or 312, 316, 686 P.2d 324 (1984). As explained by the court in Ramierez v. Hawaii T&S Enterprises, Inc.:
This statement identifies three criteria that a government function or duty must meet in order to qualify for discretionary immunity. It must be the result of a choice, that is, the exercise of judgment; that choice must involve public policy, as opposed to the routine day-today activities of public officials; and the public policy choice must be exercised by a body or person that has, either directly or by delegation, the responsibility or authority to make it.179 Or.App. 416, 419, 39 P.3d 931 (2002). Here, it is clear that, while the choices and decisions made by the law enforcement officers in this case were “discretionary” in layman's terms, they were the sort of routine day-to-day decisions made by officers in the course of their duties that are specifically excluded from the term-of-art that is “discretionary immunity.” Officers here did not enact any broad public policy that would be entitled to such immunity. This affirmative defense is therefore legally insufficient, and futile. Leave to amend should be denied.
d. Leave to amend and add the seventh affirmative defense (independent intervening cause) should be denied.
Defendants' seventh affirmative defense alleges that “[plaintiffs damages, if any, and the cause of the death of Joshua Fischer were the result of one or more independent intervening causes.” This defense is factually insufficient because defendants have not given fair notice how this defense applies in this case. Leave to add this affirmative defense should be denied.
The Court notes, however, that Plaintiff also argues that the specific “intervening cause” of Joshua Fischer's suicide “was considered and expressly rejected as legally insufficient by the Ninth Circuit.” The Court disagrees with Plaintiff on this point. The Ninth Circuit determined that “suicide is not unforeseeable as a matter of law in Oregon,” but whether it was unforeseeable in this specific case, based on the facts known to the officers at the time, is a factual issue to be determined by the jury. See Grainger v. Ensley, No. 20-36021,2022 WL 1439132, at *5 (9th Cir. May 6, 2022) (emphasis added).
e. Leave to amend and add the ninth affirmative defense (Joshua Fischer had a . “legal right to take his own life”) should be denied.
Defendants' ninth affirmative defense alleges that “Joshua Fischer ... had the legal right to voluntarily take his own life ... therefore, no person, including the Defendants, can be held liable [for his death].” Plaintiff argues the same point as above, regarding the Ninth Circuit's holding that suicide is not unforeseeable as a matter of law. As discussed above, whether the suicide in this case was an intervening cause is a question of fact for the jury.
However, the Ninth Circuit also determined that “suicide does not by its nature break the chain of causation under Oregon law.” Id. at *6. Therefore, to the extent that the defendants are attempting to re-assert the legal argument that suicide breaks the chain of causation as a matter of law, leave to amend and add this affirmative defense should be denied.
f. Leave to amend and add the tenth and eleventh affirmative defenses should be denied.
Defendants' tenth and.eleventh affirmative defenses allege that ORS 430.399, the statute that requires an officer to take an intoxicated person who is a danger to themselves or others to an appropriate treatment facility or sobering facility, is unconstitutional because it violates the Fourth Amendment rights of the person who is intoxicated. “Because ORS 430.399 is unconstitutional, Defendants cannot be held liable to the Plaintiff or any beneficiary of the Plaintiff for money because Joshua Fischer made the choice to take his own life.” Def. Answer ¶l4 (#123). Essentially, defendants assert that because the statute is unconstitutional, it cannot provide a valid standard for the statutory liability or common law negligence claimed by Plaintiff. See id. at ¶16. These defenses are legally insufficient. This Court and Oregon state courts have held that reasonable cause to believe that a person is a danger to themselves or others is an exigent circumstance that renders seizure of such person pursuant to a protective custody statute constitutional. See, e.g, Pyles v. Winters, 2013 WL 34753311, at *4 (where reasonable cause to effectuate a peace officer hold under ORS 426.228(1) is present, there is no Fourth Amendment violation); Nathan v. Dept, of Human Svcs., 288 Or.App. 554, 565, 407 P.3d 857, 867 (2017) (where exigent circumstances are present, seizure of child by DHS pursuant to ORS 419B.150 without a warrant is not a Fourth Amendment violation), (citing Wallis v. Spencer, 202 F.2d 1126, 1138 (9th Cir 2000)). Leave to add these affirmative defenses should be denied.
RECOMMENDATION
Plaintiffs motion to strike (#130) should be granted in part and denied in part. Defendants should be given leave to amend their Answer and add affirmative defenses (1), (3), (4), and (6), which are:
Comparative fault caused by Joshua Fischer himself.
Comparative fault caused by Joshua Fischer's mother, Plaintiff Jonell Grainger.
The OTCA limits Plaintiffs remedy to the County and requires dismissal of individual defendants. .
Damages are also limited by the OTCA.
The other seven affirmative defenses should be disallowed. It is likely that some of the issues raised by the disallowed affirmative defenses, such as the specific intervening cause of Joshua Fischer's suicide, will be allowed to be explored at trial, but those issues should be raised with the trial judge. As currently plead in the defendants' Answer (#123) here, they are insufficient as affirmative defenses, and leave to add them should be denied.
SCHEDULING
This Report and Recommendation will be referred to a district judge. Objections, if any are due no later than fourteen (14) days after the date this recommendation is entered. If objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See FED. R. CRV. P, 72, 6.
Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951, E.2d 1153 (9th Cir. 1991).