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Terry v. Newell

United States District Court, D. Arizona

July 8, 2014

Kent Terry, et al., Plaintiffs,
v.
William Newell, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Defendant and Crossclaimant Lone Wolf Trading Company, L.L.C. ("Lone Wolf") has filed a Motion to Amend its Answer and Crossclaim. Doc. 95. The motion is fully briefed and no party has requested oral argument. The Court will grant in part and deny in part Lone Wolf's motion.

I. Background.

Plaintiffs instituted this action on December 13, 2012, seeking recovery for the death of Border Patrol Agent ("BPA") Brian Terry who was killed by Mexican drug cartel operatives while on duty in the Arizona desert on December 15, 2010. Doc. 1. Plaintiffs sued Assistant United States Attorney Emory Hurley and ATF Agents William Newell, George Gillett, David Voth, Hope McAllister, Tonya English, and William McMahon ("Individual Defendants") alleging violations of BPA Terry's substantive due process rights under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Plaintiffs alleged that the Individual Defendants formulated and executed "Operation Fast and Furious, " which facilitated the distribution of firearms to dangerous criminals through a process known as "gunwalking." Plaintiffs also sued Lone Wolf under negligence, wrongful death, and negligence per se theories, alleging that Lone Wolf was the source of the guns used to kill BPA Terry. In an order dated June 14, 2013, the Court held that Plaintiffs had failed to state a Bivens claim against the Individual Defendants. Doc. 68. That decision is now on appeal.

On May 17, 2013, Lone Wolf filed a crossclaim against the Individual Defendants. Doc. 48. Pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("FELRTCA"), the government filed a motion on August 20, 2013 to substitute itself for the Individual Defendants with respect to Lone Wolf's crossclaims. Doc. 61. The Court granted the motion on November 18, 2013. Doc. 70.

On March 19, 2014, Lone Wolf filed the current motion to amend its answer and crossclaim. Doc. 95. The motion seeks to assert a specific Bivens claim as well as additional state law claims. The government and the Individual Defendants oppose the motion.

II. Legal Standard.

"Rule 15(a) declares that leave to amend shall be freely given when justice so requires'; this mandate is to be heeded." Foman v. Davis, 371 U.S. 178, 182 (1962). "In exercising its discretion[, ]... a court must be guided by the underlying purpose of Rule 15 - to facilitate decision on the merits rather than on the pleadings or technicalities.... Thus, Rule 15's policy of favoring amendments to pleadings should be applied with extreme liberality.'" Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (citations omitted). "This liberality... is not dependent on whether the amendment will add causes of action or parties." DCD Programs, LTD. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).

Motions to amend should be granted unless the district court determines that there has been a showing of (1) undue delay, (2) bad faith or dilatory motives on the part of the movant, (3) repeated failure to cure deficiencies by previous amendments, (4) undue prejudice to the opposing party, or (5) futility of the proposed amendment. Foman, 371 U.S. at 182. "Generally, this determination should be performed with all inferences in favor of granting the motion." Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999). The party opposing amendment bears the burden of showing a reason for denying a motion to amend. DCD Programs, 833 F.2d at 187.

III. Analysis.

The Individual Defendants and the government oppose Lone Wolf's motion to amend its crossclaim, but not the request to amend its answer. Docs. 99, 100. The Court therefore will grant the motion to amend the answer and address the opposition to the proposed new crossclaims.

A. Proposed Crossclaims Against the Government.

The United States argues that each of the proposed new crossclaims is futile. Doc. 100 at 4. The new claims include assumption of duty, negligent retention of agents, negligent failure to follow regulations, breach of a "special duty" owed to Lone Wolf, and a Bivens ...


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