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Williams v. Khan

United States District Court, D. Arizona

May 15, 2018

Elizabeth Williams, Plaintiff,
v.
Levi Khan, et al., Defendants.

          ORDER

          Bernardo P. Velasco, United States Magistrate Judge

         Pending before the Court are: (1) Plaintiff's Motion for Leave to File a First Amended Complaint (Doc. 51); (2) Plaintiff's Motion to Compel Discovery (Doc. 53); and (3) Non-Party Arizona Department of Child Safety's Motion to Quash or Modify Subpoena (Doc. 57). The motions are fully briefed.

         I. Factual and Procedural Background

         This action arises from the removal of Plaintiff's children from Plaintiff's home by the Arizona Department of Child Safety (DCS). Plaintiff alleges that the children were removed after DCS employee Defendant Erika Campas, assisted by Defendant Tucson Police Department Officers Gary Rosebeck and James Davis, conducted a welfare check at Plaintiff's home and discovered marijuana plants in the home. Plaintiff also alleges that DCS employee Defendant Levi Khan sexually assaulted her. Plaintiff alleges the following counts against Defendants Campas, Rosebeck, and Davis: illegal search and seizure in violation of Fourth Amendment rights under 42 U.S.C. § 1983 and civil conspiracy to violate civil rights under 42 U.S.C. § 1985. With regard to Defendant Kahn, Plaintiff alleges violation of constitutional due process rights under 42 U.S.C. § 1983.[1] Plaintiff also alleges illegal search and seizure policy engaged in by “DCS, Tucson and/or the State of Arizona” in violation of the Fourth Amendment under 42 U.S.C. § 1983. (Doc. 1 at ¶¶ 82-89.)

         Plaintiff, through counsel Patrick Broom, Adam Pelz, and Stephen Weeks, filed the instant action in state court on December 16, 2016. (Doc. 1-3.) The case was removed to this Court on January 18, 2017. (Doc. 1.) On June 1, 2017, the Court granted the request of Plaintiff's counsel Broom and Pelz to withdraw. (Doc. 16.) Plaintiff continued to be represented by Stephen Weeks. (Id.)

         On June 14, 2017, the Court held a Rule 16 Scheduling Conference and Mr. Weeks appeared on behalf of Plaintiff. (Doc. 19.) Among the deadlines set at the scheduling conference, was the deadline of July 7, 2017 for filing a motion to amend the complaint. (Doc. 20.)

         One week following the scheduling conference, Plaintiff's counsel Weeks moved to withdraw, and the Court granted the motion on June 30, 2017. (Docs. 22, 26.) On July 5, 2017, the Court entered an order directing the Clerk of Court to send Plaintiff a copy of the scheduling order, and the Court advised Plaintiff that “that the dates set out in the Scheduling Order remain in full force and effect.” (Doc. 27 at 1.)

         On November 15, 2017, Plaintiff filed a Motion for Order Modifying Case Schedule to extend deadlines, [2] and she also requested that the Court grant Michael Moore leave to appear as trial counsel. (Doc. 31.) On December 8, 2017, the Court extended the deadlines as requested by Plaintiff and on December 12, 2017, Mr. Moore entered his appearance. (Docs. 35, 36.)

         II. Plaintiff's Motion for Leave to File a First Amended Complaint

         On February 1, 2018, Plaintiff, through counsel Moore, filed the instant Motion for Leave to File a First Amended Complaint pursuant to Rules 15(a) and 16(b) of the Federal Rules of Civil Procedure. (Doc. 51.) With the proposed amendment, Plaintiff seeks to: (1) eliminate her claim against Defendant Kahn; and (2) allege a new count against Defendant Campas asserting violation of Plaintiff's right of familial association under the First and Fourteenth Amendments to the United States Constitution. (Doc. 51 at 1; see also Doc. 51-1 at ¶¶ 97-100.) Defendant Campas opposes Plaintiff's Motion to the extent that Plaintiff seeks to add a claim against her. (Doc. 58.)

         Ordinarily, whether to allow amendment of the complaint is governed by Rule 15(a)(2), which provides that “[t]he court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). When determining whether to grant leave to amend under Rule 15, the court should consider whether: (1) there has been undue delay, bad faith, or dilatory motive on the part of the moving party; (2) there have been repeated failures to cure deficiencies by previous amendments; (3) there has been undue prejudice to the opposing party by virtue of the allowance of the amendment; and (4) amendment would be futile. Sharkey v. O'Neal, 778 F.3d 767, 774 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

         However, where, as here, the motion for leave to amend the complaint is filed after expiration of the deadline set in the Rule 16 scheduling order for seeking leave to amend, Plaintiff's ability to amend her complaint is governed by Rule 16(b)'s “good cause standard”, and not Rule 15(a). Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608, 609 (9th Cir. 1992). See also Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge's consent.”). Thus, “[u]nlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s ‘good cause' standard primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609. “The focus of the inquiry is upon the moving party's reasons for seeking modification.” Id. The Ninth Circuit has observed that “carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.” (Id. (citation omitted). “The district court is given broad discretion in supervising the pretrial phase of litigation, and its decisions regarding the preclusive effect of a pretrial order . . . will not be disturbed unless they evidence a clear abuse of discretion.” Id. at 607 (internal quotation marks and citation omitted).

         Plaintiff stresses that she was diligent in obtaining new counsel after her previous counsel withdrew and that her new counsel “has been diligent in digging into the unorganized and rather disjointed file”[3] and communicating with defense counsel. (Doc. 51 at 3.) “[A]s soon as it became clear to . . . [Plaintiff's current counsel] that the original trial counsel had pleaded facts supporting the familial association claim, but apparently overlooked specifically identifying that claim, the Motion was filed.” (Id. at 4.)

         To show Plaintiff's lack of diligence, Defendant Campas asserts that Plaintiff knew earlier about the claim she seeks to add now. Defendant Campas cites statements from Plaintiff's previous counsel in May 2017 that Plaintiff's “claim was for the alleged illegal search and seizure and [she] was not seeking a separate claim for the loss of the children. . . . Instead, she [through previous counsel] explained that the loss of her children would go to her damages.” ...


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