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Helena v. City of San Francisco

United States District Court, N.D. California
Sep 8, 2005
No. C04-0260 CW (N.D. Cal. Sep. 8, 2005)

Opinion

No. C04-0260 CW.

September 8, 2005


ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND GRANTING DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION


Plaintiffs Alfonso Helena and Daniel Tziu move for leave to file a First Amended Complaint (FAC). Plaintiffs seek to add Fourth Amendment claims for illegal search and seizure and use of excessive force and to substitute Sergeant Kyle Ching for one of the Doe Defendants. Defendants City and County of San Francisco and Officer Joseph Salazar (collectively, Defendants) oppose the motion.

The matter was heard on June 17, 2005. Having considered all of the papers filed by the parties and oral argument on the motion, the Court grants Plaintiff's motion in part and denies it in part, as described below.

Defendants move for summary adjudication of Plaintiffs' sixth claim against the City and County of San Francisco pursuant toMonell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1987). Plaintiffs do not oppose the motion, and the parties stipulated to vacate the hearing. The Court accordingly grants Defendants' motion for summary adjudication of the Monell claim.

BACKGROUND

This case involves a March 7, 2003, incident in which Plaintiffs were arrested or detained by San Francisco police officers.

Plaintiffs now seek leave to amend their complaint in order to add allegations, based on information acquired during depositions of San Francisco police officers, which identify Sgt. Ching as a defendant, state that Sgt. Ching observed Officer Salazar search Mr. Helena's car and substitute Sgt. Ching for the Doe officer who handcuffed Mr. Tziu. Based in part on these allegations, Plaintiffs seek to add additional federal claims under 42 U.S.C. § 1983 (1) by Mr. Helena against Sgt. Ching for excessive force; (2) by Mr. Tziu against Sgt. Ching for excessive force; (3) by Mr. Helena against Sgt. Ching for unreasonable search and seizure; and (4) by Mr. Tziu against Sgt. Ching for unreasonable search and seizure.

The revised proposed FAC also includes a proposed State law claim for intentional infliction of emotional distress by Mr. Tziu against Officer Salazar. In their June 25, 2005 Supplemental Reply to Opposition to Motion to Amend, Plaintiffs state their intention to withdraw Mr. Tziu's proposed IIED claim.

Plaintiffs also seek to add certain allegations that their counsel, Kenneth Frucht, "inadvertently left out of the original complaint," including that Sgt. Ching placed Mr. Tziu in a chokehold and that Officer Salazar twisted Mr. Tziu's hand. Frucht Decl. ¶ 3. The latter new allegation appears to be the only basis for a fifth proposed additional federal claim under 42 U.S.C. § 1983 by Mr. Tziu against Officer Salazar for excessive force.

In their initial disclosures, Defendants listed each of the officers who were present during the incident alleged in the complaint. Aubrey Decl., Ex. A. Plaintiffs expected to "determine the identity of the officer who arrested Tziu through discovery, and to name that officer once his identity is ascertained." Plaintiffs' August 6, 2004, Case Management Statement.

At the initial case management conference on August 8, 2004, the Court ordered Defendants to disclose the identity of the arresting officer within one week; one week thereafter, Plaintiffs were to move to file an amended complaint. John Aubrey, counsel for Defendants, phoned Mr. Frucht on August 10, 2004, and left a message informing him that Defendants had "not yet discovered the identity of the officer that allegedly handcuffed Tziu," and asking that Mr. Frucht return the call. Aubrey Decl. ¶ 6. After receiving no response to the phone message, Mr. Aubrey confirmed in an August 20, 2004, letter that the Doe officer remained unidentified, explained that only four out of seven officers had been available for him to interview and promised, "If and when I discover the officer's identity, I will notify you immediately. I also will stipulate, if necessary, to the filing of an amended complaint at that time." Id., Ex. C, August 20, 2004 Letter from John P. Aubrey to Kenneth Frucht.

Plaintiffs inquired into the status of the investigation on October 3, 2004. Frucht Decl., Ex. A, October 3, 2004 Letter from Kenneth Frucht to John P. Aubrey. On October 6, 2004, Mr. Aubrey responded, stating that all but one officer had been interviewed "and none of them recalls who transported Mr. Tzui to the police station," and asking how Plaintiffs wished to proceed. Id., Ex. D, October 6, 2004 Letter from John P. Aubrey to Kenneth Frucht.

On October 19, 2004, the Court approved a stipulation by the parties, at the request of Plaintiffs, to continue the trial and other deadlines. The parties agreed to extend the deadline for the final date for hearing dispositive motions to July 1, 2005. The stipulation did not address the Court's deadline for amendments adding parties or claims to the complaint.

Plaintiffs explain that, rather than amend the complaint to name all of the officers who were present, they decided to wait until the officers' depositions were taken to see if they could identify the officer that handcuffed Tziu. Frucht Decl. P 7. However, Plaintiffs did not ask the Court to revise its deadline accordingly.

On April 12, 2005, Plaintiffs deposed some of the officers present at the incident. Mr. Helena apparently attended the deposition and was able to identify Sgt. Ching as "the one who grabbed Tziu." Pls.' Mot. to Amend at 4. Sgt. Ching testified in his deposition that Officer Greiner had told him that he, Sgt. Ching, had made the decision to transport Mr. Tziu to the police station, although Sgt. Ching did not actually recall making this decision. Frucht Decl., Ex. B, Ching Dep. 46:10-48-20. Sgt. Ching also testified that he saw "Officer Salazar going through [Helena's] car and lock it up and secure it." Id. 44:20-22.

On April 25, 2005, Defendants deposed Mr. Tziu. When asked if he "knew before seeing him that Officer Salazar was the one who had twisted his arm," Mr. Tziu stated, "Yes." Ex. A, Tziu Dep. 79:4-6. Further, Mr. Tziu testified, "I knew his name because he introduced himself to my mom." Id. 79:8-9.

Pursuant to the stipulation of the parties, the deadline for hearing dispositive motions was July 1, 2005. Erroneously believing that July 1 was the deadline for filing dispositive motions, Defendants did not notice any dispositive motion for hearing by July 1, but instead noticed a summary judgment motion on the original complaint's Monell claim for hearing on August 12, 2005.

LEGAL STANDARD

A party seeking to amend a pleading after the date specified in a scheduling order must first show "good cause" for the amendment under Rule 16(b) and, second, if good cause is shown, the party must demonstrate that the amendment is proper under Rule 15.Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992).

In order to determine good cause, courts generally consider the diligence of the party seeking the modification. Johnson, 975 F.2d at 609; see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). "Not only must parties participate from the outset in creating a workable Rule 16 scheduling order but they must also diligently attempt to adhere to that schedule throughout the subsequent course of the litigation." Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999). A party seeking to amend a scheduling order must show that it had assisted the Court to create a workable schedule at the outset of litigation, that the scheduling order creates deadlines that have become impracticable notwithstanding its diligent efforts to comply with the schedule, and that it was diligent in seeking the amendment once it became apparent that extensions were necessary.See id. at 608.

DISCUSSION

The Court's deadline for amending the complaint to add parties or claims was August 18, 2004. Therefore Plaintiffs' motion is governed by Federal Rule of Civil Procedure 16(b), which requires a showing of good cause.

Plaintiffs have not shown good cause for their delay in seeking to amend their complaint to add the § 1983 claim of excessive force by Mr. Tziu against Officer Salazar. The fact that Plaintiffs became aware of this omission during the recent depositions of Mr. Tziu and his mother is not good cause, because these facts have been within Plaintiffs' possession since the case was filed.

Plaintiffs were justified in not identifying Sgt. Ching in their original complaint. However, Plaintiffs offer no explanation for their failure to notify the Court promptly after Defendants timely informed them that they were unable to identify the Doe officer. Plaintiffs do not explain why they did not move for an extension of the deadline to add additional parties and claims. Nor do Plaintiffs, having learned of Sgt. Ching's identity more than seven months later, show any good cause for delaying more than three weeks before filing their motion for leave to amend.Cf. August 24, 2004, Minute Order (requiring that Plaintiffs file an amended complaint within one week after learning Doe officer's identity).

On the other hand, Defendants have not litigated this case diligently themselves. Defendants' motion for summary judgment on the Monell claim was noticed for hearing well after the July 1, 2005 deadline. Because of that, and Plaintiffs' desire to file a belated amended complaint, the Court decided to vacate the then-existing pretrial conference and trial date and now grants Plaintiffs leave to file an amended complaint to add the proposed allegations and claims against Sgt. Ching. The Court notes that Defendants did not notice a motion for summary judgment on the merits for hearing by the revised August 12, 2005 deadline.

CONCLUSION

For the foregoing reasons, Plaintiffs' motion for leave to amend is GRANTED in part and DENIED in part (Docket No. 23). Defendants' motion for summary adjudication of the Monell claim against the City and County of San Francisco is GRANTED (Docket No. 31).

Plaintiffs may file a revised FAC, adding only the proposed allegations and claims against Sgt. Ching. Plaintiffs' FAC may not include the proposed additional allegations and claims against Officer Salazar or the proposed IIED claim by Mr. Tziu against Officer Salazar. The FAC also may not include a Monell claim against the City and County of San Francisco.

IT IS SO ORDERED.


Summaries of

Helena v. City of San Francisco

United States District Court, N.D. California
Sep 8, 2005
No. C04-0260 CW (N.D. Cal. Sep. 8, 2005)
Case details for

Helena v. City of San Francisco

Case Details

Full title:ALFONSO HELENA and DANIEL TZIU, Plaintiffs, v. CITY OF SAN FRANCISCO…

Court:United States District Court, N.D. California

Date published: Sep 8, 2005

Citations

No. C04-0260 CW (N.D. Cal. Sep. 8, 2005)