Opinion
CIVIL ACTION NO. H-97-1568
September 9, 2002
MEMORANDUM AND ORDER
Pending before the Court are Plaintiffs' Motion for Leave to File Second Amended Complaint [Doc. #99], and Defendants' Opposition to Plaintiffs' Motion for Leave to File a Second Amended Complaint [Doc. # 103], as well as Plaintiffs' Renewed Motion to Disclose Grand Jury Minutes and Transcript [Doc. #98], and Defendants' Response in Opposition to Plaintiffs' Renewed Motion to Disclose Grand Jury Minutes and Transcript [Doc. #102]. Having reviewed the parties' briefs, all matters of record, and applicable legal authorities, the Court concludes that Plaintiffs' Motions should be denied for reasons explained below.
Defendants' Motion to Dismiss or for Summary Judgment After Remand [Doc. #77] and the United States' similarly named motion [Doc. #93] (collectively "Defendants' Motions") are also currently pending before the Court. All parties have submitted extensive briefing. All have cited, and urged the Court to rely on, evidence outside of the pleadings in connection with Defendants' Motions. Therefore, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court gives notice that it will treat Defendants' Motions as motions for summary judgment. Plaintiffs' Motion for Leave to File Second Amended Complaint. — Plaintiffs do not set out in their Motion for Leave the specific ways in which their proposed amended complaint varies from the Second Amended Complaint. Plaintiffs merely state generally that the amendment is necessary to incorporate additional factual information revealed in documents provided by Defendants after Plaintiffs' First Amended Complaint was filed that is relevant to Defendants' "good faith." The proposed amendment does not add any additional legal theories for recovery or additional parties.
The Court notes that Plaintiffs have had notice of Defendants' requests for summary judgment since Defendants' Motions were filed several months ago.
Following remand of this case from the Fifth Circuit, the Court granted Plaintiff leave to file a Second Amended Complaint joining his wife, Karen Suter Izen, as a Plaintiff and adding a claim under the Federal Tort Claims Act against the United States. See Order [Doc. # 76]. Therefore, Plaintiffs' current motion is actually a motion for leave to file a Third Amended Complaint.
Given the misnomer of Plaintiffs' current proposed amended complaint, it is unclear whether Plaintiffs mean to say that the documents were produced after the Second Amended Complaint was filed. In any event, the materials were provided in conjunction with Defendants' Motions filed in December 2001. Plaintiffs' waited almost seven months, after the Motions were ripe for determination, to seek leave to amend.
The proposed amendment does eliminate the state torts of intentional infliction of emotional distress and negligence from Plaintiffs' Federal Tort Claims Act cause of action.
Because Defendants' initial summary judgment motion has been pending since December 2001, and the Court has afforded Plaintiffs the opportunity to submit supplemental briefing, Plaintiffs have had ample time and opportunity to incorporate any information gleaned from government documents in their summary judgment briefing. Further amendment of the pleadings at this late stage of the proceedings would serve no real purpose but could cause undue delay and prejudice in this case, which was originally filed in May, 1997. The Court concludes that Plaintiffs' have not shown good cause for the amendment and the interests of justice will not be served by allowing the proposed amendment. Plaintiffs' Motion for leave to file his "Second Amended Complaint" is denied.
Renewed Motion to Disclose Grand Jury Minutes and Transcript. — Disclosure of grand jury materials may be allowed when a party demonstrates with particularity a compelling necessity for the materials. Izen, 256 F.3d at 329. The party seeking disclosure must meet the burden of demonstrating that the need for disclosure outweighs the public interests in secrecy. In re Grand Jury Testimony, 832 F.2d 60, 62 (5th Cir. 1987). Plaintiff Izen previously moved in 1999 for disclosure of grand jury information. Judge Botley determined that Izen had not shown a compelling need for the information, and the Fifth Circuit affirmed that finding on appeal. Id. at 330 ("We find that Izen has not shown a compelling necessity and the district court did not abuse its discretion in denying the motion.").
In the current motion, Plaintiffs once again insist that they have a compelling need to review the grand jury transcripts to impeach Defendants' assertion of good faith motives for pursuing an investigation and obtaining an indictment against Izen. However, the need expressed in Plaintiffs' motion not particularized and is no more compelling than what easily could be expressed by every plaintiff in every malicious prosecution case. It is true that Defendants have expanded the record on summary judgment after remand to include additional evidence in support of probable cause for the investigation and indictment. See Declaration of Terry Catalina and Exhibits thereto, attached to Defendants' Motion to Dismiss or For Summary Judgment After Remand [Doc. #77]. Plaintiffs contend that Defendants' evidence indicates that they relied on an unreliable informant in deciding to pursue money laundering charges against Izen, and that the grand jury information is necessary to impeach Catalina's Declaration.
Impeachment is frequently cited as a reason for release of grand jury testimony. In re Grand Jury Testimony, 832 F.2d at 63. Impeachment may constitute a particular need, but bald assertions of the need are not sufficient to justify disclosure. Id. It is unclear what "inconsistency" Plaintiffs hope to discover in Catalina's grand jury testimony. Plaintiffs' contention appears to be simply that the government relied upon information provided by an unreliable informant, and therefore lacked probable cause to pursue the investigation against Izen. Catalina's entire grand jury testimony is not necessary to the argument. Plaintiffs are free to make this argument in their summary judgment response, and in fact have done so. Therefore, Plaintiffs have not shown with particularity a compelling need for the grand jury minutes and transcript.
Although the Court denies Plaintiffs' current motion, it will reconsider Plaintiffs' need for grand jury materials in connection with the specific arguments and evidence presented in Defendants' Motions.
It is therefore
ORDERED that Plaintiffs' Motion for Leave to File Second Amended Complaint [Doc. #99] is DENIED. It is further
ORDERED that Plaintiffs' Renewed Motion to Disclose Grand Jury Minutes and Transcript [Doc. #98] is DENIED. It is further
ORDERED that Defendants' Motion to Dismiss or for Summary Judgment After Remand [Doc. #77] and the United States' Motion to Dismiss or for Summary Judgment [Doc. #93] After Remand will be treated as summary judgments motions.