United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
before the Court are Plaintiffs' Motion for Leave to File
a Third Amended Complaint (Doc. 353), Defendant Margaret
Hinchey's Motion to Strike Plaintiffs' Motion for
Leave to File a Third Amended Complaint (Doc. 354), and
Defendant's Motion to Dismiss Second Amended Complaint
(Doc. 355). The Court now rules on the motions.
Peck, Benjamin Sywarungsymun, Aaron Lentz, and Shannon Lentz
(hereinafter “Plaintiffs”) filed a complaint
against Margaret Hinchey (hereinafter “Defendant”
or “Hinchey”) and numerous other defendants in
June 2012. Plaintiffs were subjected to a criminal
investigation in which Hinchey, a Special Agent with the
Arizona Attorney General's Office, was involved. The
investigation sought to determine whether Defendants, who
were employed by the Phoenix Police Department (PPD), were
falsely reporting the hours worked at their off-duty job
working security at the Cotton Center Townhomes. (Doc. 1 at
4). In November 2010, Plaintiffs were indicted by a grand
jury on felony theft of services charges. (Doc. 1 at 13).
Plaintiffs also were suspended from their jobs with the PPD.
(Doc. 1 at 15).
review of Defendant's investigation, Plaintiffs filed a
motion to remand their indictments in Maricopa County
Superior Court. The motion was granted, and a second grand
jury declined to re-indict Plaintiffs. The Attorney
General's Office then filed a motion to dismiss charges
against Plaintiffs, and the charges were dismissed in
Plaintiffs filed a complaint in this Court, alleging
inter alia that Hinchey and the other defendants
falsified evidence, presented false evidence to the grand
jury and prosecuting authorities, and maliciously prosecuted
Defendants in violation of their Constitutional rights and 42
U.S.C. § 1983. (Doc. 1). In April 2013, this Court
issued an order granting Plaintiffs leave to amend their
complaint upon stipulation of the parties. (Doc. 166). In
that same order, the Court re-set the controlling Rule 16
deadlines and removed the previously-agreed to
“floating date” for filing motions to amend the
complaint. The Court noted that Plaintiffs could no longer
continue to amend the complaint dependent upon the
Court's future rulings, and required Plaintiffs to
“file any further motions to amend” the complaint
by May 31, 2013. (Doc. 166 at 5). Upon stipulation of the
parties, Plaintiffs filed a Second Amended Complaint
(hereinafter “the Complaint”) on May 8, 2013.
Defendant filed a motion to dismiss the Complaint. (Doc.
197). The Court granted the motion on the basis of absolute
immunity under Rehberg v. Paulk, 132 S.Ct. 1497
(2012), and dismissed Plaintiffs' complaint without leave
to amend. (Doc. 329). Plaintiffs appealed the dismissal, and
the Ninth Circuit Court of Appeals reversed this Court's
grant of absolute immunity to Hinchey. (Doc. 351; Doc. 351-2;
see also Doc. 352). On appeal, Plaintiffs also
argued this Court erred when it denied them leave to amend
the Complaint after the May 31, 2013 deadline. (Doc. 354 at
Exhibit 1). The Circuit Court disagreed and affirmed this
Court's denial of leave to amend, determining that
Plaintiffs “did not demonstrate ‘good cause'
to amend past the deadline.” (Doc. 351- 2 at
4). The Circuit Court also explained that as a
result of its ruling, this Court “need only consider
the allegations in the Second Amended Complaint on
the Circuit Court's ruling, this Court entered an Order
clarifying the case's procedural posture. That Order
explained that the Complaint, as limited by the Ninth
Circuit's decision on appeal, now represents the
“totality of the claims” remaining in the case.
(Doc. 352 at 3). The Court also required Defendant to respond
to Counts I, II, and III of the Complaint either by answer or
by a “completely new” motion. (Doc. 352 at 3
n.2). Defendant did so by filing a motion to dismiss the
Complaint. (Doc. 355). Plaintiffs also filed a motion for
leave to file a third amended complaint (Doc. 353), and
Defendant moved to strike Plaintiffs' motion to amend
Motion for Leave to File Third Amended Complaint
request leave to file a third amended complaint was filed in
August 2016 - well after the expiration of the May 31, 2013
deadline set by this Court in its April 2013 ruling. (Doc.
166). Accordingly, the Court must evaluate Plaintiffs'
motion under Rule 16(b) to determine if good cause exists for
the delay in filing. Coleman v. Quaker Oats Co., 232
F.3d 1271, 1294 (9th Cir. 2000); see also Taylor ex rel.
Thomson v. Zurich Am. Ins. Co., 2013 WL 1340014 at *5
(D. Ariz. Aug. 3, 2010). If the Court finds good cause for
granting leave to amend under Rule 16(b), it must then
determine whether leave to amend is also warranted under Rule
15(a). Johnson v. Mammoth Recreations, 975 F.2d 604,
607-08 (9th Cir. 1992) (explaining that “a motion
seeking to amend pleadings is governed first by Rule 16(b),
and only secondarily by Rule 15(a)”). Whether to grant
leave to amend a complaint is a decision “within the
Court's sound discretion.” In re Mortg. Elec.
Registration Sys. Litig., 744 F.Supp.2d 1018, 1033 (D.
Ariz. 2010); see also Ascon Prop., Inc. v. Mobil Oil
Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (describing
this Court's discretion to deny further leave to amend as
“particularly broad” when the plaintiff has
already had an opportunity to amend the complaint).
Good Cause under Rule 16(b)
Rule of Civil Procedure (“Rule”) 16(b) states
that the Court's scheduling order “may be modified
only for good cause and with the judge's consent.”
Fed.R.Civ.P. 16(b). The primary consideration under Rule
16(b) is the “diligence of the party seeking the
amendment.” Johnson, 975 F.2d at 609. Although
the Court may consider whether an amendment would prejudice
the non-moving party, the “focus of the inquiry is upon
the moving party's reasons for seeking
modification.” Id. To show good cause under
Rule 16(b), the moving party must prove: (1) that its need to
seek a late amendment of the complaint was not reasonably
foreseeable or anticipated at the time of the Rule 16
scheduling conference, and (2) that it was diligent in
seeking to extend the time for amending the complaint once it
became apparent that amendment was necessary.
Taylor, 2013 WL 1340014 at *3.
argue a third amended complaint is necessary to “remove
reference to dismissed Defendants and to further define
earlier allegations.” (Doc. 353 at 4:2, 4:21). Under
the facts of this case, the Court does not find
Plaintiffs' argument compelling. Plaintiffs assert the
need to redefine the Complaint's allegations arose based
on information learned during Defendant Hinchey's
depositions. (Doc. 353 Exhibit 1 at ¶ 101, 104-05). But
Hinchey's depositions were completed as early as August
2013. (Doc. 95, Doc. 100, Doc 110, Doc. 116, Doc. 234).
Plaintiffs therefore had reason to know of the facts
necessitating redefinition of their claims for seven months
before this Court ruled on Defendant's motion ...