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Peck v. Hinchey

United States District Court, D. Arizona

December 13, 2016

Steven Peck, et al., Plaintiffs,
v.
Margaret Hinchey, et al., Defendants.

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.

         Pending 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.

         I. Background

         Steven 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).

         After a 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 November 2011.

         Subsequently, 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. (Doc. 180).

         Later, 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 remand.” (Id.)

         After 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 (Doc. 354).

         II. Motion for Leave to File Third Amended Complaint

         A. Legal Standard

         Plaintiffs' 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).

         B. Good Cause under Rule 16(b)

         Federal 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.

         Plaintiffs 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 ...


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