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McKee v. Peoria Unified School District

United States District Court, Ninth Circuit

August 2, 2013

Timothy McKee, Plaintiff,
Peoria Unified School District; Peoria Unified School District Board; Denton Santarelli, Superintendent for the District; Jane Doe Santarelli; Mary Ellen Simonson; Bruce E. Meyerson; Kirstin Story; John Doe Story; Denise Bainton; John Doe Bainton; Tahlya Visintainer; John Doe Visintainer; et al., Defendants.


G. MURRAY SNOW, District Judge.

Defendants have moved to dismiss and strike, (Doc. 21), Plaintiff Timothy McKee's Second Amended Complaint (SAC), (Doc. 20). The Court grants the Motion to Strike and denies the Motion to Dismiss for the reasons described below.[1]


McKee worked as a physical education teacher in Defendant Peoria Unified School District for nine years. (Doc. 20 ¶ 16.) On May 5, 2010, one of the students drowned during a free swim period that McKee supervised with another physical education teacher. ( Id. ¶¶ 18-25.) Two teachers and no lifeguards were present. ( Id. )

The District hired Defendants Mary Ellen Simonson and Kristin Story, attorneys who worked with Defendant Tahlya Visintainer, the District's human resource director, to investigate the accident. ( Id. ¶¶ 8, 26.) Simonson, Story, and Visintainer met with McKee in August 2010 and requested that he resign; if he did not, the District threatened to terminate his employment. ( Id. ¶ 27.) Simonson, Story, and Visintainer informed McKee that they were preparing a formal Statement of Charges for Defendant Peoria Unified School District Governing Board and that McKee would need to meet with them again before August 20, 2010. ( Id. ¶ 29.)

After his meeting with Simonson, Story, and Visintainer, McKee hired an attorney who began an investigation into the District's actions. ( Id. ¶¶ 31-33.) McKee sought evidence from the District relating to the charges against him, but the District failed to timely produce that information, including records of interviews with witnesses. ( Id. ¶¶ 102-04.) McKee's attorney submitted a letter to the Board on August 17, 2010, that detailed McKee's account of the events of May 5, 2010, the existence of an intergovernmental agreement (IGA) between the District and the City of Glendale that required that three lifeguards be present when the pool was used ( Id. ¶¶ 33-35.), and the District's failure to comply with the safety regulations. ( Id. ¶¶ 37-40.)

McKee alleges that the decision to terminate him was made before August 20, 2010, outside of a required public meeting. ( Id. ¶¶ 42-43, 45-46.) On that date, the Board met first in an executive session to consider McKee's employment. ( Id. ¶¶ 48-49, 51-52.) Defendant Denton Santarelli, the District superintendent, presented the Board with the Statement of Charges, in which the administration alleged that there were sufficient grounds to terminate McKee's employment. ( Id. ¶ 53.) The Board presented Simonson as its attorney during the public session of August 20, 2010. ( Id. ¶ 60.) The Board adopted the Statement of Charges, after which McKee requested a hearing pursuant to state law. ( Id. ¶¶ 63-64.) The Board selected a hearing officer, who heard the case, made findings of fact, and ultimately made a recommendation to the School Board after hearing from Simonson and Story on behalf of the District and McKee and his counsel. ( Id. ¶¶ 65-67.) The hearing officer's findings were "fully in favor of McKee and he recommended no action be taken against McKee." ( Id. ¶ 68.)

The Board met again on December 6, 2010, and heard argument on the hearing officer's recommendations. ( Id. ¶ 70.) The Board's attorney, Simonson, argued on behalf of the District. ( Id. ) A different attorney, Denise Bainton, appeared for the first time on behalf of the Board at the hearing. ( Id. ¶ 77.) The Board rejected the hearing officer's recommendations and voted to terminate McKee's employment. ( Id. ¶ 71.)

After voting to terminate McKee's employment, the Board altered the hearing officer's findings to support the ultimate termination decision even though the Board did not have before it the full record of the hearing. ( Id. ¶¶ 72, 75, 79.) The District also supplied the Board with portions of the record without notice to McKee. ( Id. ¶¶ 81-82.) During this process, Simonson, Visintainer, and Santarelli encouraged members of the Board to conduct their own investigations outside the formal proceeding. ( Id. ¶¶ 78, 86-87.) In addition, Visintainer and Santarelli had numerous ex parte communications with the Board. ( Id. ¶ 86.) Simonson represented both the school administration and the Board. ( Id. ¶¶ 88-98.)

McKee filed an action against Defendants in Maricopa County Superior Court on November 21, 2011, in which he challenged the Board's actions. (Doc. 1-2.) He eventually amended his Complaint on January 2, 2013, to assert claims under 42 U.S.C. § 1983: First Amendment retaliation and denial of due process. (Doc. 1-4 at 89.) Defendants removed to this Court on January 22, 2013. (Doc. 1.) McKee once again amended his Complaint and Defendants have moved to dismiss and/or strike on five grounds: (1) McKee's SAC violated a still-operative state court order; (2) the SAC added a claim in violation of this Court's Order; (3) the Colorado River doctrine counsels a dismissal in light of parallel state court proceedings; (4) the § 1983 claims are untimely; and (5) McKee fails to state a claim upon which relief can be granted. Defendants also seek sanctions under 28 U.S.C. § 1927. The Court strikes McKee's conspiracy claim, but the remainder of the SAC survives Defendants' Motion.


Defendants assert that the claims McKee brings in his SAC contravene an order issued by the Superior Court before this case was removed. "After removal, the federal court takes the case up where the State court left it off." Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 436 (1974) (internal quotation marks omitted). "The federal court... treats everything that occurred in the state court as if it had taken place in federal court." Butner v. Neustadter, 324 F.2d 783, 785 (9th Cir. 1963). "Consequently, an order entered by a state court should be treated as though it had been validly rendered in the federal proceeding.'" Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 887 (9th Cir. 2010) (quoting Butner, 324 F.2d at 786).

McKee's original Complaint asserted a common law whistleblower claim, a statutory wrongful termination claim, and claims for emotional distress. (Doc. 1-3.) The Superior Court dismissed without prejudice the whistleblower claim on Defendants' Motion to Dismiss. (Doc. 21-6, Ex. 6 at 22:2-17.) The concern was that McKee's administrative appeal from his termination was still pending in Superior Court. ( Id. ) The Superior Court also granted leave to amend "as to the other two counts You'll have 30 days from [December 3, 2012] to amend your pleadings as to the other two claims." Id. at 22:18-25.) The "two counts" language seems to reference the wrongful termination and emotional distress claims.

Nevertheless, when McKee filed his Amended Complaint, he asserted claims under 42 U.S.C. § 1983 for First Amendment retaliation and due process violations. (Doc. 1-4 at 89.) Those claims arguably fell outside of the scope of amendment permitted by the Superior Court, which allowed only amendment of the wrongful termination and emotional distress claims, not the addition of new claims.

But the Superior Court's order was not the final word on the scope of permissible amendment. On February 19, 2013, after removal, the Parties filed a Stipulation re Consent to Filing of Amended Complaint. (Doc. 15.) In that Stipulation, Defendants "consent[ed] pursuant to Fed.R.Civ.P. 15(a)(2) to the filing of an amended complaint against them in this matter.... This consent extend[ed] only to a complaint that attempts to restate one or both of the claims contained in the currently operative complaint, and not to any proposed amended complaint seeking to add other claims or parties." ( Id. at 1.) Pursuant to that Stipulation, the Court entered an Order granting McKee "leave to file an amended complaint restating one or both of the claims contained in the currently operative complaint." (Doc. 16.)

There is no dispute that the then-operative complaint was the Amended Complaint that contained the § 1983 claims. In light of the Stipulation and the Court's subsequent Order, the first two claims in the Second Amended Complaint were appropriately asserted. Once the Parties reached a stipulation regarding the scope of permissible amendment and this Court ended an order that incorporated that stipulation any previous orders by the Superior Court regarding the scope of the amendment were "dissolved or modified" and of no effect. 28 U.S.C. § 1450.

Yet the scope of permissible amendment contained in the stipulation was limited to the two § 1983 claims that existed in the Amended Complaint. McKee added a conspiracy claim in his SAC that was not included in the Amended Complaint. This Court specifically ordered that "[i]f Plaintiff wishes to file an amended complaint adding claims or parties not appearing in the current operative complaint, filing of that complaint must separately comply with the requirements of Fed.R.Civ.P. 15(a)([2]) and is not permitted by this Order." (Doc. 16.) McKee did not obtain consent from Defendants or leave from this Court to add a new claim as required by Fed.R.Civ.P. 15(a)(2). Count Three therefore is stricken without prejudice.

McKee argues that, while he did not have a conspiracy claim in his Amended Complaint, he did allege that Defendants acted together to deprive McKee of his rights under § 1983. To strike his conspiracy claim "would be elevating form over substance." (Doc. 23 at 9.) Whatever McKee wishes to call it, he did not have a right under the Federal Rules to add a new legal claim for conspiracy. While the factual basis for the claim may have been present, the addition of a new legal claim is not a matter of form.


Defendants next claim that this Court should dismiss or stay this litigation under the Colorado River doctrine to allow McKee to complete the appeal of his termination that is currently pending in Superior Court. (Doc. 21-1, Ex. 1; Doc. 21-2, Ex. 2.)[3] On appeal, McKee argues, similar to his assertions here, that his termination involved a denial of due process, statutory failures in the Statement of Charges, and arbitrary and capricious action. (Doc. 21-7, Ex. 7.)

A. Legal Standard

When a state court and federal court are engaged in "the contemporaneous exercise of concurrent jurisdiction, " considerations of "wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation" may result in a federal court staying litigation. Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800, 817 (1976). Nevertheless, federal courts have a "virtually unflagging obligation... to exercise the ...

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