Opinion
23-3345
12-06-2024
JOHN BRAXTON, Jr., individually and as heir to Markese Braxton, deceased, and KATHY WILLIAMS BRAXTON, individually, and as heir to Markese Braxton, deceased, Plaintiffs - Appellants, v. COUNTY OF LOS ANGELES, Defendant-Appellee.
NOT FOR PUBLICATION
Submitted December 4, 2024 [**] Pasadena, California
Appeal from the United States District Court for the Central District of California Wesley L. Hsu, District Judge, Presiding D.C. No. 5:20-cv-01128-WLH-SHK
Before: BYBEE, IKUTA, and BADE, Circuit Judges.
MEMORANDUM [*]
Plaintiffs, John Braxton, Jr. and Kathy Williams Braxton, appeal the district court's dismissal of their claims against Dr. Jeffrey Billett and Does 1-15 and the denial of their motions for leave to amend to name Los Angeles County Sheriff Jim McDonnell and Deputy Jason Lau as defendants. For the reasons below, we dismiss this appeal in part and affirm on the remaining issues.
1. We begin with the threshold question of jurisdiction. We have appellate jurisdiction over final decisions of the district court. 28 U.S.C. § 1291. "[A] final decision is a decision by the District Court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." United States v. Alvarez-Moreno, 657 F.3d 896, 899 (9th Cir. 2011) (internal quotation marks omitted) (quoting Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989)). Even if the parties concede it, we must assure ourselves of jurisdiction. See Kuster v. Block, 773 F.2d 1048, 1048 (9th Cir. 1985) (citation omitted).
Plaintiffs' third amended complaint alleged claims only against the County of Los Angeles ("County") and Does 1-25. The district court dismissed all allegations against the County with prejudice on November 4, 2021, leaving only the claims against the Does. In its order denying leave to amend to name Lau, the district court held that the time to identify Doe Defendants had lapsed. Because the only remaining claims were no longer viable, the order denying leave to amend was a final decision. Therefore, we have jurisdiction.
2. Plaintiffs challenge the dismissal of their claims against Billett. However, Billett is not a party to this appeal. Plaintiffs' notice of appeal neither listed Billett, who was dismissed in 2021, as an appellee nor did it identify the order dismissing him as being appealed. Although failure to list an appellee is not a jurisdictional bar to an appeal, see West v. United States, 853 F.3d 520, 523 (9th Cir. 2017), as a matter of claim processing and fundamental fairness, it may warrant dismissal where the appellee would suffer prejudice.
Here, even if Billett's counsel received a copy of the notice of appeal, there would have been no reason for his counsel to know that Billett's dismissal was being appealed because it did not mention Billett or identify the order dismissing him. Furthermore, in a certificate of service attached to the notice, Plaintiffs' counsel stated only that he had sent a copy of the notice to the County's counsel, not Billett's. Thus, Billett was not on notice of this appeal. Presumably due to the lack of notice, Billett's counsel never filed an appearance in this appeal or submitted an answering brief, so any consideration of the merits would prejudice Billett. Therefore, we dismiss the appeal as to Billett.
3. Plaintiffs challenge the district court's dismissal of their claims against Does 1-15 from their second amended complaint. When the district court dismissed the second amended complaint against these Does, it did so with leave to amend. Plaintiffs then realleged these claims in their third amended complaint. Because Plaintiffs only appeal the dismissal of the second amended complaint here as it relates to these Defendants, we lack jurisdiction and dismiss the appeal as to Does 1-15, see WMXTechs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
4. Plaintiffs contest the district court's rejection on futility grounds of their motion for leave to amend to add claims against McDonnell. Federal Rule of Civil Procedure 15(a) provides that where a party is not entitled to amend its complaint as a matter of course, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). We "consider[] five factors in assessing the propriety of leave to amend-bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint." United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011) (citation omitted). Amendment is futile where "it is clear, upon de novo review, that the complaint could not be saved by any amendment." Id. (citation omitted).
In their proposed fourth amended complaint, Plaintiffs raised civil rights and negligence claims against McDonnell. The civil rights allegations focused on McDonnell's failure to implement and enforce policies and procedures to prevent Braxton's death. Nothing in the proposed complaint said what actions McDonnell individually took to harm Braxton.
Allegations related to policies and procedures are improper against a Defendant in their individual capacity because they are brought pursuant to Monell v. Department of Social Services of New York against the municipality, whether stated that way or not. 436 U.S. 658, 694 (1978). However, the district court had already dismissed the Monell claim with prejudice, so realleging it against McDonnell in his individual capacity would have been futile.
Likewise, Plaintiffs' common law negligence claim against McDonnell did not aver what duty McDonnell individually owed Braxton, which of his actions breached that duty, and how that breach caused Braxton's death, and Plaintiffs fail to show how any amendment to the third amended complaint would survive a motion to dismiss. See Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). Without such allegations, Plaintiffs cannot sustain a negligence action under California law. See Ileto v. Glock Inc., 349 F.3d 1191, 1203 (9th Cir. 2003) (citation omitted) (describing elements of negligence in California). Therefore, the district court properly held that granting leave to amend would be futile, and we affirm.
5. Finally, Plaintiffs dispute the district court's denial of their motion to substitute Lau for one of the Doe Defendants. In denying the motion, the district court noted that Plaintiffs had unduly delayed in seeking amendment, that permitting amendment would prejudice the County and Lau, and that amendment would be futile. Because we agree with the futility determination and that alone justified denying leave to amend, see United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001) (acknowledging that futility alone may warrant denying leave to amend), we do not analyze the undue delay or prejudice findings here.
Plaintiffs filed their initial complaint on June 2, 2020. Under California law, which we apply in this circumstance, see Lindley v. Gen. Elec. Co., 780 F.2d 797, 800 (9th Cir. 1986), Plaintiffs had until June 2, 2023 to identify the Doe Defendants, see Cal. Civ. Proc. Code § 583.210, a deadline Plaintiffs conceded. Plaintiffs filed an ex parte motion for leave to amend in May 2023, which the district court denied on June 5, 2023. Plaintiffs then waited two months, to August 8, 2023, before filing a new motion for leave to amend. That second motion fell outside of the three-year period. Thus, the district court correctly found that the time for Plaintiffs to identify the Does had lapsed and amendment would be futile.
To the extent that Plaintiffs claim they are entitled to protection from California Emergency Rule 9 because of the COVID-19 pandemic, they have failed to show how the pandemic caused the delay in identifying Lau, so they are not entitled to the rule's safe harbor, even assuming without deciding that those protections could apply in this case. We affirm the denial of leave to amend.
DISMISSED in part and AFFIRMED in part.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).