United States District Court, D. Arizona
ORDER
Honorable Jennifer G. Zipps United States District Judge.
Pending
before the Court is Plaintiffs' Motion for Order Amending
Scheduling Order and for Leave to File Proposed First Amended
Complaint (Doc. 53). Plaintiffs seek to file an amended
complaint, most significantly, to add a claim for First
Amendment retaliation against the defendant employees of the
Arizona Department of Child Safety (DCS). DCS employees
Gerardo Talamantes, Mildred Jimenez, and Valarie Brown oppose
the Motion. (Doc. 54). For the following reasons, the Court
will deny the Motion.
Discussion
The
Court set a March 12, 2018 deadline for requests to amend the
pleadings. (Doc. 46 at 2.) In its scheduling order, the Court
advised the parties if a request for leave to file an amended
complaint is brought after the deadline, the moving party
must satisfy Rule 16(b)'s good cause standard.
(Id. at n.3 (citing Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992);
Coleman v. Quaker Oats Company, 232 F.3d 1271, 1294
(9th Cir. 2000).) “Rule 16(b)'s ‘good
cause' standard primarily considers the diligence of the
party seeking the amendment.” Johnson, 975
F.2d at 609. Moreover, “[a]lthough the existence or
degree of prejudice to the party opposing the modification
might supply additional reasons to deny a motion, the focus
of the inquiry is upon the moving party's reasons for
seeking modification.” Id. (citation omitted).
Plaintiffs
filed their motion to amend on March 30, 2018, shortly after
the Court's deadline. Plaintiffs assert that new facts
were obtained during the deposition of DCS employee Valarie
Wilhoite Brown[1] which demonstrate good cause for the
proposed amendment and the addition of the retaliation claim.
According to Plaintiffs, “[t]hree salient facts were
confirmed at the deposition, which were not previously
sufficiently developed”: (1) Brown confirmed that at
the commencement of the Team Decision Making (TDM) meeting,
Karl and Gretchen Daschke had advised that they did not wish
to speak; (2) Brown admitted that DCS had no additional facts
at the end of the meeting than had been known to the
caseworker and supervisor before the meeting started; and (3)
Brown confirmed that DCS practice is to never seek a judicial
order approving the seizure of a minor, no matter what facts
exist. (Doc. 53, p. 2.)
The
Court agrees with Defendants that Brown's deposition
testimony does not provide new information which would
demonstrate good cause to allow the request for amendment. As
to the first fact, Brown's testimony provides no new
information. Plaintiffs knew prior to the proposed amendment
whether Plaintiffs advised participants at the beginning of
the TDM that Plaintiffs did not wish to speak. Plaintiffs
also knew whether they explained that their decision not to
participate was based on advice of counsel. Brown's
deposition testimony does not provide any additional
information as to these points.[2]
As to
the second point, Brown did not admit at her deposition that
DCS had no additional facts at the end of the meeting than it
had before the meeting started. In fact, according to the
deposition transcript, Brown was asked where she got
information that Plaintiffs would not address the concerns or
advise DCS they would address concerns independently, and
Brown responded: “Based on discussion at the team
decision meeting.” (Doc. 54, p. 5.) Similarly,
Brown's deposition testimony cannot be fairly read as
support for Plaintiffs' third contention -- that Brown
confirmed that the DCS practice is to never seek a judicial
order approving the seizure of a minor. (Doc. 54, Exh. A, pp.
31-33.)[3]
Even if
Plaintiffs satisfied the requirements of Rule 16(b), Rule
15(a), Fed. R. Civ. P., does not support the request for
amendment. Under that rule, “[t]he court should freely
give leave [to amend] when justice so requires, ”
considering 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. Rule 15(a),
Fed. R. Civ. P.; Sharkey v. O'Neal, 778 F.3d
767, 774 (9th Cir. 2015) (citing Foman v. Davis, 371
U.S. 178, 182 (1962)). In evaluating undue delay, the court
“do[es] not merely ask whether a motion was filed
within the period of time allotted by the district court in a
Rule 16 scheduling order. Rather, in evaluating undue delay,
[the court] also inquire[s] whether the moving party knew or
should have known the facts and theories raised by the
amendment in the original pleading.”
AmerisourceBergen, Corp. v. Dialysist West, Inc.,
465 F.3d 946, 953 (9th Cir. 2006) (internal quotation marks
and citation omitted). The Ninth Circuit has “noted
that late amendments to assert new theories are not reviewed
favorably when the facts and the theory have been known to
the party seeking amendment since the inception of the cause
of action.” Acri v. International Ass'n of
Machinists & Aerospace Workers, 781 F.2d 1393, 1398
(9th Cir. 1986). As discussed above, Plaintiffs have failed
to present new facts that were not known to Plaintiffs prior
to the request for amendment.
The
Court notes that in some instances, Plaintiffs' proposed
First Amended Complaint refers to ND and ZD by their full
names or first names. Pursuant to Rule 5.2(a)(3) of the
Federal Rules of Civil Procedure and General Order 08-11 of
the U.S. District Court for the District of Arizona, personal
identifiers such as names of minor children must either be
excluded or partially redacted from the Complaint. Only the
minor's initials may be used in court filings.
See Fed.R.Civ.P. 5.2(a)(3); General Order 08-11.
Because Plaintiffs' proposed First Amended Complaint
contains the minors' full names, the Court will direct
the Clerk to seal that document.
Accordingly,
IT IS ORDERED:
1.
Plaintiffs' Motion for Order Amending Scheduling Order
and for Leave to File Proposed First Amended Complaint (Doc.
53) is DENIED;
2. The
Clerk of Court shall SEAL Doc. 53-2.
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