Opinion
2:06-CV-00121 JWS, [Re: Motions at Docket Numbers 33 and 45].
May 5, 2006
ORDER AND OPINION
I. MOTIONS PRESENTED
At docket 33, plaintiffs Nathan Miles Irwin and Theresa Caskey, on behalf of her minor child, Joshua Jay Irwin, move the court for leave to file a first amended complaint. Defendant United States of America opposes the motion at docket 39. At docket 45, defendant moves for independent medical examinations of Nathan Irwin and Joshua Irwin pursuant to Federal Rule of Civil Procedure 35. Plaintiffs did not file a response in opposition to the motion. Oral argument was not requested, and it would not assist the court.
II. BACKGROUND
This matter arises out of the death of Casey Miles Irwin on January 2, 2004, following his detention at the Peach Springs Detention Facility in Peach Sprngs, Arizona. Casey Irwin was the father of Nathan and Joshua Irwin. On April 6, 2005, plaintiffs filed a complaint in the United States District Court for the District of Nevada, alleging claims of wrongful death by negligence and intentional infliction of emotional distress under the Federal Tort Claims Act, and a claim for "constitutional deprivations" under the Fourth, Fifth, and Eighth Amendments to the United States Constitution.On June 14, 2005, defendant moved to dismiss plaintiffs' claim for constitutional deprivations under the Fourth, Fifth, and Eight Amendments. By order dated November 17, 2005, this matter was transferred to the United States District Court for the District of Arizona. On January 30, 2006, plaintiffs filed the underlying motion for leave to file a first amended complaint. On February 27, 2006, the court entered a minute order denying defendant's motion to dismiss plaintiffs' third cause of action without prejudice "to consideration of the arguments made in connection therewith when the court decides which of the plaintiffs' proposed claims may be included in an amended complaint." The court's minute order further stated that the court would consider plaintiffs' motion for leave to file a first amended complaint "in due course with the understanding that the motion is not opposed as to the first two causes of action, but that it is opposed as to the third." Plaintiffs' motion for leave to file first amended complaint is now ripe for the court's review.
D. Nev. doc. 10.
D. Nev. doc. 25.
Doc. 42 at 1.
Id.
IV. DISCUSSION
A. Motion for Leave to File First Amended Complaint
Pursuant to Federal Rule of Civil Procedure 15(a), after a responsive pleading is served, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Liberality in granting leave to amend is subject to the qualification that amendment of the complaint does not cause the opposing party undue prejudice, is not sought in bad faith, and does not constitute an exercise in futility.
DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).
Plaintiffs seek to amend their complaint to conform their first two causes of action to evidence found during discovery, and to change their third cause of action from alleging constitutional deprivations under the United States Constitution to alleging constitutional deprivations under the State Constitution of Arizona. Defendant does not oppose the proposed amended complaint insofar as it amends the first two causes of action, but opposes plaintiff's proposed third cause of action on the grounds that it is futile because constitutional claims cannot be maintained against the United States under the Federal Tort Claims Act.
First Amended Complaint (proposed) at 8, exh. 1, doc. 33.
F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994) (concluding the United States has not rendered itself liable under 28 U.S.C. § 1346(b) for constitutional tort claims).
It is well established that "the United States can be sued only to the extent that it has waived its sovereign immunity." "The terms of the United States' consent to be sued in any court define that court's jurisdiction to entertain the suit." A waiver of the United States' sovereign immunity "cannot be implied but must be unequivocally expressed." The burden is on the plaintiffs to make such a showing.
Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995).
Id.
United States v. Mitchell, 445 U.S. 535, 538 (1983) (internal quotation and citation omitted).
Cato, 70 F.3d at 1107.
Here, plaintiffs have failed to make the requisite showing that the United States has waived its sovereign immunity to be sued on claims alleging violations of the Arizona State Constitution. Because the United States has not unequivocally waived its sovereign immunity, this court lacks subject matter jurisdiction over plaintiffs' alleged claim for constitutional deprivations under the Arizona State Constitution, and plaintiffs' third cause of action will be dismissed.
Balser v. Department of Justice, Office of U.S. Trustee, 327 F.3d 903, 907 (9th Cir. 2003).
B. Motion for Independent Medical Examinations
Defendant requests the court to enter an order requiring Nathan and Joshua Irwin to undergo independent mental examinations pursuant to Federal Rule of Civil Procedure 35(a), which provides:
When the mental or physical condition . . . of a party or a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
Defendant alleges that the mental condition of Nathan and Joshua Irwin is in controversy in this matter because plaintiffs have alleged a claim of intentional infliction of emotional distress and are seeking to recover damages related to their alleged emotional distress. Plaintiffs did not file a response in opposition to the motion for independent medical examinations.
As defendant has made the requisite good cause showing, provided notice to the persons to be examined, and identified a licensed examiner to conduct the psychological examinations, the court will grant defendant's motion, provided that the mental examinations shall be performed by Celia A. Drake, Ph.D., and scheduled for a date, time, and place mutually agreeable and convenient to the parties. As a general rule, the party being examined must pay travel expenses to the examination, while the moving party bears the expenses of the examination itself.
8A Wright Miller, Fed. Prac. Proc. Civ.2d § 2234.
V. CONCLUSION
For the reasons set out above, plaintiffs' motion for leave to file first amended complaint at docket 35 is GRANTED IN PART and DENIED IN PART as follows: plaintiffs' motion is GRANTED as to the first and second causes of action and DENIED as to the third cause of action, and plaintiffs' third cause of action is DISMISSED. Pursuant to Federal Rule of Civil Procedure 15(a), defendant shall file an answer to plaintiffs' amended complaint within ten days after service of the amended pleading.It is further ordered that defendant's motion at docket 45 for independent medical examinations of Nathan Irwin and Joshua Irwin is GRANTED, provided that the mental examinations shall be scheduled at a time, date, and place mutually agreeable and convenient to the parties within 45 days of the filing of this order, and shall be performed by Celia A. Drake, Ph.D. Plaintiffs are responsible for paying their own travel expenses to the examinations, while defendant shall bear the costs of the examinations themselves. As Joshua Irwin is a minor in the legal custody of Theresa Caskey, Ms. Caskey is ordered to produce Joshua Irwin for the examination. Pursuant to Federal Rule of Civil Procedure 35(b), plaintiffs are entitled to copies of the examiner's written reports upon request.