United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge.
issue is Defendant Brent Russell's Motion to Dismiss
Plaintiff's Second Amended Complaint Pursuant to Rule
12(b)(6) (Doc. 59). In this Order, the Court will also
resolve Russell's Request that the Court Summarily Grant
Russell's Motion to Dismiss Second Amended Complaint
21, 2018, the Court held a Rule 16 Scheduling Conference
(Doc. 50), at which time the Court granted Defendant Brent
Russell's prior Motion to Dismiss (Doc. 44). The Court
dismissed Plaintiff's state law claims against Russell
with prejudice because those claims were already being
litigated in an older, parallel state court action, and the
Court dismissed Plaintiff's Americans with Disabilities
Act (“ADA”) and Rehabilitation Act claims against
Russell without prejudice, because they could not be brought
against Russell in his individual capacity.
to Plaintiff's assertion (e.g., Doc. 56), the
Court did not give Plaintiff leave to file an amended
complaint, but rather leave to file a
motion to amend. In the May 21,
2018 Scheduling Conference, the Court stated:
I will leave it to you, [counsel for Plaintiff] Mr. Borunda,
if it was your intention to raise those claims as against Mr.
Russell, to consider whether you want to amend the complaint
to file against him in his official capacity, if that can be
done, and I know that may be the subject of litigation later
on. So with regard to those two claims, it will be dismissal
without prejudice. We've set the time for filing motions
to amend for June 8. If, upon contemplation, that's what
Mr. Borunda wants to do, he may and that may alight another
set of motion practice or it may not.
in its Scheduling Order (Doc. 51), the Court gave Plaintiff
until June 8, 2018, to file any
motion to amend. Instead, Plaintiff
simply filed a Second Amended Complaint (Doc. 57), to which
Russell has filed another Motion to Dismiss (Doc. 59) and the
other Defendants have filed an Answer (Doc. 58).
erred when she filed a Second Amended Complaint without
filing a Motion to Amend the Complaint, as required by
Federal Rule of Civil Procedure 15(a)(2). A party may amend a
complaint once as a matter of course within 21 days after
serving it, or within 21 days of service of, among others, a
Rule 12(b)(6) motion. Fed.R.Civ.P.
15(a). In all other
circumstances, absent the opposing party's written
consent, a party must seek leave to amend from the court.
Fed.R.Civ.P. 15(a)(2). Although the decision whether to grant
or deny a motion to amend is within the trial court's
discretion, “Rule 15(a) declares that leave to amend
shall be freely given when justice so requires.”
Foman v. Davis, 371 U.S. 178, 182 (1962) (citation
and internal quotations omitted). “In exercising its
discretion with regard to the amendment of pleadings, a court
must be guided by the underlying purpose of Rule 15-to
facilitate a decision on the merits rather than on the
pleadings or technicalities.” Eldridge v.
Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (citation and
internal quotations omitted).
the policy in favor of allowing amendments is subject to
limitations. After a defendant files a responsive pleading,
leave to amend is not appropriate if the “amendment
would cause prejudice to the opposing party, is sought in bad
faith, is futile, or creates undue delay.” Madeja
v. Olympic Packers, 310 F.3d 628, 636 (9th Cir. 2002)
(citation and internal quotations omitted). “Futility
alone can justify the denial of a motion for leave to
amend.” Nunes v. Ashcroft, 375 F.3d 805, 808
(9th Cir. 2003).
Defendants had already answered Plaintiff's First Amended
Complaint (Docs. 10, 20, 22, 25, 31, 33), and the period in
which Plaintiff could have amended her Complaint as a matter
of course passed. As a result, absent Defendants' written
consent-which Plaintiff made no mention of in her Notice of
Filing Amended Pleading (Doc. 56)-Plaintiff was required to
file a motion to amend in which Plaintiff demonstrated that
her proposed amendments are not futile and do not cause undue
delay or otherwise prejudice Defendants.
Plaintiff erred in filing the Second Amended Complaint,
Russell filed another Motion to Dismiss (Doc. 59) on June 21,
2018, arguing among other things that, considering
Plaintiff's allegations, it is not plausible that Russell
was acting in an official capacity at the time of the conduct
Plaintiff alleges because he was an employee of a temporary
employment agency, Kelly Services, and not the School
District. Russell's argument has merit. Plaintiff had
until July 12, 2018, to file a Response to Russell's
Motion to Dismiss, but failed to do so. As a result, Russell
is entitled to summary disposition of his Motion to Dismiss
under Local Rule 7.2(i), and the Court will therefore dismiss
Plaintiff's claims against Russell in the Second Amended
Complaint. Although Plaintiff did not properly move to file a
Second Amended Complaint in the first place, all
Defendants-Russell and the others-would be prejudiced by
having prepared a Motion to Dismiss or Answer if the Court
now struck the improperly-filed Second Amended Complaint.
Court also notes that the June 8, 2018 deadline to file a
motion to amend the complaint set forth in the Scheduling
Order (Doc. 51) has now passed. Federal Rule of Civil
Procedure 16(b)(4) provides that the deadlines in the
Scheduling Order “may be modified only for good cause
and with the judge's consent.” A motion to amend
the complaint filed after the deadline set forth in the
Scheduling Order is equivalent to a motion to amend the case
schedule, which must meet the “good cause”
requirement of Rule 16(b)(4). See Morgal v. Maricopa Cty.
Bd. of Supervisors, 284 F.R.D. 452, 459 (D. Ariz. 2012).
“Rule 16(b)'s ‘good cause' standard
primarily considers the diligence of the party seeking the
amendment.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992). Thus, a party
moving to amend the Complaint must first demonstrate that she
worked diligently to comply with the schedule as set forth in
the Scheduling Order. Id. at 459-60. Put another
way, Plaintiff must show that conditions made it impossible
to timely file a motion to amend. Id.
Plaintiff is contemplating an attempt at amending the Second
Amended Complaint to once again raise claims against Russell,
Plaintiff must take into consideration the requirements of
the Scheduling Order and Rules 15 and 16. Plaintiff already
did not file a motion requesting leave to file the Second
Amended Complaint, as required by Rule 15(a)(2), and it is
difficult to conceive of a manner in which Plaintiff can now
meet the Rule 16 standard for the Court to amend the
Scheduling Order and allow Plaintiff to file a late motion to
amend. For the time being, the Court will allow the Second
Amended Complaint (Doc. 57) to stand, but grant Russell's
Motion to Dismiss (Doc. 59). The operative Complaint in this
matter is thus the Second Amended Complaint (Doc. 57) minus
Plaintiffs claims against Russell.
THEREFORE ORDERED granting Defendant Brent Russell's
Motion to Dismiss Plaintiffs Second Amended Complaint
Pursuant to Rule 12(b)(6) (Doc. 59).
FURTHER ORDERED denying as moot Defendant Brent Russell's
Request that the Court Summarily Grant Russell's Motion