Opinion
No. CV-17-02532-PHX-SMB
08-05-2019
Frank Muniz, Jr., Plaintiff, v. Joseph M Arpaio, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE:
I. Summary of Conclusion.
Pending before the Court is Plaintiff Frank Muniz, Jr.'s Motion for Leave to Amend his Complaint. (Doc. 70.) Defendant Livingston opposes the Motion. (Doc. 71.) The Court will recommend that Plaintiff's Motion be denied because it fails to comply with LRCiv 15.1(a) and is untimely without good cause.
II. Background.
On July 28, 2017, Plaintiff initiated this action by filing a civil rights complaint (Complaint) alleging, inter alia, Defendants Livingston, John Doe 1, and Jane Doe 2 used excessive force against Plaintiff in violation of his Fourteenth Amendment rights. (Doc. 1.) On August 24, 2017, the Court screened Plaintiff's Complaint, and ordered Defendant Livingston to answer Plaintiff's claims against him in Count One. (Doc. 8.) Additionally, the Court provided that
Plaintiff may use the discovery process to obtain the names of Defendants John Do[e] 1 and Jane Doe 1. If Plaintiff late discovers the identity of these fictitiously named defendants, Plaintiff should seek to amend his Complaint to name them, in compliance with Rule 15 of the Federal Rules of Civil Procedure.(Id.at 4-5.)
On September 28, 2017, Defendant Livingston waived service pursuant to Rule 4 of the Federal Rules of Civil Procedure. (Doc. 10.) On October 4, 2017, Defendant Livingston filed his answer to Plaintiff's Complaint. (Doc. 11.)
On October 6, 2017, the Court issued a Scheduling Order in this action. (Doc. 12.) Therein, the Court states that "Motions to join parties or for leave to amend pleadings shall be filed by January 3, 2018." (Id. at 1 (emphasis removed).) On March 16, 2018, the Court modified the Scheduling Order, extending the deadline to file a motion for leave to amend pleadings until April 3, 2018. (Doc. 23.) Plaintiff did not file a motion for leave to amend pleadings prior to the extended deadline.
On June 1, 2018, Defendant Livingston filed a "Motion for Leave of Court to File DVD As Exhibit 1 to his Separate Statement of Facts in Support of Motion for Summary Judgment" (doc. 27), which the Court granted (doc. 31). On June 4, 2018, Defendant Livingston filed his Motion for Summary Judgment (doc. 29), and Statement of Facts (doc. 30). On August 31, 2018, Plaintiff filed his Response to Defendant's Motion for Summary Judgment. (Doc. 36.) Therein, Plaintiff relies in part on his assessment of the "jail video" and "tazer video" recordings of the incident, and even lists the name of at least one officer depicted in the video, detailing how their written account differs from the footage. (See id. at 15-16.)
On December 20, 2018, the Court denied Defendant's Motion for Summary Judgment and dismissed Defendants John and Jane Doe 2 without prejudice for failure to serve under Federal Rule of Civil Procedure 4(m). (Doc. 46.) On May 28, 2019, a Settlement Conference was held before Magistrate Judge Deborah M. Fine, where the parties were unable to reach a settlement. (Doc. 62.)
On May 31, 2019, the Court set a telephonic Trial Conference for July 18, 2019. (Doc. 64.) On July 18, 2019, the Court held the Conference as scheduled, and set this matter for trial from January 21-24, 2020. (Doc. 66.) At the Conference, Plaintiff informed the Court for the first time that he would be filing a Motion to Amend his Complaint. (Id.) Later that day, Plaintiff filed the Motion at bar. (Doc. 70.)
III. Legal Standard.
Because the deadline for amending as a matter of course has passed, Plaintiffs may amend "only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Generally, Leave to amend is given freely "when justice so requires." Id. "Rule 15's policy of favoring amendments to pleadings should be applied with extreme liberality." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (internal quotation marks and citations omitted; alterations incorporated). A motion for leave to amend may be denied, however, if the court finds "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, 371 U.S. 178, 182 (1962).
When, as here, a party seeks leave to amend a complaint after a pretrial scheduling order has been entered pursuant to Federal Rule of Civil Procedure 16(b)(1), and after the designated deadline for amending pleadings has passed, the party must first make a showing of "good cause" under Rule 16(b)(4). Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 608 (9th Cir. 1992) ("A party seeking to amend a pleading after the date specified in the scheduling order must first show good cause for amendment under Rule 16, then if good cause be shown, the party must demonstrate that amendment was proper under Rule 15.") (citation and internal quotation marks omitted).
When seeking leave to amend after the deadline imposed by the scheduling order, a party cannot "appeal to the liberal amendment procedures afforded by Rule 15; his tardy motion [has] to satisfy the more stringent 'good cause' showing required under Rule 16." AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 965, 952 (9th Cir. 2006) (emphasis in original). "Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to impose an amendment and the prejudice to the opposing party, Rule 16(b)'s 'good cause' standard primarily considers the diligence of the party seeking the amendment." Johnson, 975 F.2d at 609.
IV. Discussion.
The Court will recommend that Plaintiff's Motion to Amend be denied for two reasons: (1) Plaintiff's Motion does not comply with LRCiv 15.1; and (2) Plaintiff's Motion was unduly delayed in its filing without good cause.
A. Local Rule 15.1(a).
As an initial matter, Plaintiff's Motion for Leave to Amend fails to comply with Local Rule of Civil Procedure 15.1(a), which states that "[a] party who moves for leave to amend a pleading must attach a copy of the proposed amended pleading as an exhibit to the motion, which must indicate in what respect it differs from the pleading which it amends, by bracketing or striking through the text to be deleted and underlining the text to be added." LRCiv 15.1(a). This rule carries "'the force of law.'" Eldridge v. Schroeder, No. CV-14-01325-PHX-DGC-ESW, 2016 WL 354868, at *2 (D. Ariz. Jan. 28, 2016) (quoting Hollingsworth v. Perry, 558 U.S. 183, 191 (2010)). Courts in this district "routinely den[y] motions for leave to amend for failure to comply with LRCiv 15.1(a)," id. (collecting cases), and it is well within their discretion to do so. See, e.g., Young v. Nooth, 539 Fed. App'x. 710, 711 (9th Cir. 2013) ("The district court did not abuse its discretion in denying Young leave to amend his complaint because Young failed to attach a proposed amended complaint as required by local rule.").
Here, Plaintiff fails to include an attachment with the proposed amended pleading. (See Doc. 70.) Plaintiff's failure is particularly problematic because, as an incarcerated pro se claimant, any proposed amended complaint must be screened by the Court pursuant to 28 U.S.C. § 1915A(a). Accordingly, Plaintiff's Motion should be denied for its failure to comply with LRCiv 15.1(a).
B. Unduly Delayed Without Good Cause.
Plaintiff's Motion is untimely. It is uncontested that the deadline to file a motion for leave to amend pleadings expired on April 3, 2018. (Doc. 23.) Plaintiff did not file the pending Motion until July 18, 2019, more than 15 months later. (Doc. 70.) Accordingly, the Court must engage in a two-step inquiry when deciding whether Plaintiff should be allowed to modify a scheduling order: (1) whether Plaintiff has demonstrated "good cause" to modify the Case Management Order under Rule 16(b) of the Federal Rules of Civil Procedure, and (2) whether Plaintiff's proposed amendment should be granted under the standards of Rule 15 of the Federal Rules of Civil Procedure. Vicente v. City of Prescott, No. CV11-08204-PCT-DGC, 2014 WL 1346075, at *1 (D. Ariz. Apr. 3, 2014)
Rule 16(b)'s "good cause" standard primarily considers the diligence of the party seeking the amendment. Johnson, 975 F.2d at 609. "The district court may modify the pretrial schedule 'if it cannot reasonably be met despite the diligence of the party seeking the extension.'" Id. (quoting Fed. R. Civ. P. 16 advisory committee's notes (1983 amendment)). "[C]arelessness is not compatible with the finding of diligence and offers no reason for a grant of relief." Id.
Here, the Court finds that Plaintiff was not diligent in pursing amendment of either the Scheduling Order or his Complaint. In his Motion, Plaintiff fails to provide any excuse for his considerable delay in moving for leave to amend his pleading. Instead, he provides only that:
[P]artially due to the discovery disputes between the parties and partially due to the slow and fragmented process Plaintiff is subject to in viewing video evidence while incarcerated, Plaintiff was not able to identify the additional officers involved in the incident at issue until well after the deadline for amending. . . .(Id. at 1-2.)
Through discovery, Plaintiff obtained jail surveillance video by which he was able to see what he could not have seen during the incident. That is, how many other officers were involved and to what extent. Plaintiff was then able to cross-reference, through discovered reports and affidavits, the identities of those other involved officers.
Plaintiff's explanation fails to show that he acted with diligence or that there is good cause for the Court to grant his requested relief. As discussed above, Plaintiff had access to both the videos and reports he purportedly cross-referenced to identify the remaining officers no later than August 31, 2018, when he filed his Response to Defendant's Motion for Summary Judgment. (See Doc. 36; Doc. 71-1 at 4 (Defendants' Initial Rule 26.1 Disclosure Statement identifying the incident reports naming the other officers who were present at the scene of the incident).) Despite that fact, Plaintiff waited almost 11 months to file his Motion for Leave to Amend.
Plaintiff argues that the Court should grant his Motion for Leave to Amend his Complaint under Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure. (Doc. 70 at 2-4.) Rule 15(c)(1)(B) provides that
An amendment to a pleading relates back to the date of the original pleading when: . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to set out - in the original pleading[.]Fed. R. Civ. P. 15(c)(1)(B). Plaintiff's reliance on Federal Rule of Civil Procedure 15(c)(1)(B) is misplaced.
Even if the Court assumes, arguendo, that Plaintiff's new claims against new defendants will relate back to the date of the original Complaint, Plaintiff's Motion for Leave to Amend still fails on the threshold issue of whether amendment should be permitted in the first instance. Fed. R. Civ. P. 16. Specifically, Plaintiff has failed to show there is good cause for the Court to permit his untimely Motion - particularly when considered alongside Plaintiff's clear lack of diligence and undue delay in moving to amend his Complaint. See Johnson, 975 F.2d 609; Foman, 371 U.S. 178, 182.
Accordingly, the Court will recommend that Plaintiff's Motion for Leave to Amend be denied.
IT IS THEREFORE RECOMMENDED that Plaintiff's Motion for Leave to Amend (doc. 70) be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have 14 days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed 17 pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendations of the Magistrate Judge.
Dated this 5th day of August, 2019.
/s/_________
Honorable John Z. Boyle
United States Magistrate Judge