United States District Court, D. Arizona
BRIDGET S. BADE UNITED STATES MAGISTRATE JUDGE.
have filed a second motion for leave to file an amended
complaint. (Doc. 51.) Defendant United States of America
opposes the motion. (Doc. 55.) Plaintiffs have filed a reply
in support of their motion. (Doc. 66.) The Court denies the
motion for the reasons below.
September 14, 2017, Plaintiffs commenced a wrongful death
action under the Federal Tort Claim Act (“FTCA”).
(Doc. 1.) In the Complaint, Plaintiffs alleged that on
February 7, 2014, Chantal Moore (the decedent) was admitted
to Fort Defiance Indian Hospital with a diagnosis of
pneumonia. (Doc. 1 at ¶ 31.) On February 12, 2014, the
decedent fell in the hospital bathroom, hit her head, and was
found actively seizing on the floor. (Id. at ¶
37.) The decedent suffered another seizure later that day.
(Id. at ¶ 38.) A CT-scan showed hemorrhages,
and the decedent showed signs of brain damage. (Id.
at ¶¶ 38-39.) The decedent was transferred to
Flagstaff Medical Center where, after surgery, she died on
February 15, 2014. (Id. at ¶¶ 40, 42, 44.)
After filing an administrative claim, which was denied,
Plaintiffs filed a Complaint in this Court. (Id. at
¶¶ 10-11.) In addition to the United States of
America (“Defendant” or “the
government”), the Complaint named numerous other
defendants. (Doc. 1; Doc. 34 at 2.) The government filed a
motion to partially dismiss the Complaint and the assigned
magistrate judge issued a report and recommendation on that
motion. (Doc. 11.)
22, 2018, District Judge Stephen M. McNamee adopted the
report and recommendation. (Doc. 47.) Pursuant to that order,
the Court concluded that Arizona law applied to
Plaintiffs' wrongful death claim under the FTCA.
(Id. at 3-4.) The Court dismissed, without
prejudice, Plaintiffs' claims for negligent supervision,
hiring, and retention. (Doc. 47 at 3, 5.) The Court dismissed
all of the named Defendants except for the United States of
America and dismissed the named Plaintiffs except for Derrith
Watchman-Moore and Henry K. Moore, as the surviving parents
of the decedent. (Id. at 3-5.) Therefore, after the
June 22, 2018 Order, the only remaining claim in the
Complaint is the wrongful death claim under the FTCA brought
by Plaintiffs Derrith Watchman-Moore and Henry K. Moore, as
decedent's surviving parents, against Defendant the
United States of America.
June 22, 2018 Order, the Court denied Plaintiffs' motion
for leave to amend without prejudice to filing another motion
to amend by July 31, 2018. (Id. at 5.) The Court
noted that Plaintiffs' proposed amended pleading was an
“extensive narrative” that did not comply with
Rule 8 of the Federal Rules of Civil Procedure and to which
Defendant could not file “a meaningful answer.”
(Id.) The Court cautioned that a proposed amended
pleading must comply with Rule 8 and cure any deficiencies
noted in the Report and Recommendation and its order.
(Id. at 4-5.)
Motion for Leave to File Amended Complaint
31, 2018, Plaintiffs filed a timely motion to amend, a
proposed first amended complaint, and a supporting
memorandum. (Docs. 51, 51-1, 51-2.) In their motion and
memorandum, Plaintiffs state that they seek leave to amend to
add: (1) a claim under Arizona's survival statute, Ariz.
Rev. Stat. § 14-3110 brought by Plaintiff Derrith
Watchman-Moore, in her role as personal representative of
decedent's estate (Doc. 51 at 4; 51-2 at 3); and (2) a
claim of negligent supervision and training. (Doc. 51 at 5;
Doc. 51-2 at 4.) Defendant opposes the inclusion of certain
allegations in the proposed pleading. (Doc. 55 at 2-10.)
Defendant also argues that the proposed amended complaint
fails to comply with Rule 8 or the June 22, 2018 Order.
(Id. at 10-11.)
complaint must include “a short and plain statement of
the grounds for the court's jurisdiction . . . .”
Fed.R.Civ.P. 8(a)(1). A complaint must also include “a
demand for the relief sought . . . .” Fed.R.Civ.P.
8(a)(3). Finally, a complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Each
allegation must be simple, concise, and direct.”
Fed.R.Civ.P. 8(d)(1). When a complaint includes the factual
elements of a cause of action, but those facts are not
organized into a “short and plain statement of the
claim, ” it may be dismissed for failure to satisfy
Rule 8(a). See Sparling v. Hoffman Constr. Co., 864
F.2d 635, 640 (9th Cir. 1988).
a party's claim must be stated “in numbered
paragraphs, each limited as far as practicable to a single
set of circumstances.” Fed.R.Civ.P. 10(b); see
Bautista v. Los Angeles Cty., 216 F.3d 837, 840-41 (9th
Cir. 2000). Failure to set forth claims in such a manner
places the burden “on the court to decipher which facts
support which claims, as well as to determine whether a
plaintiff is entitled to the relief sought.” Haynes
v. Anderson & Strudwick, Inc., 508 F.Supp. 1303,
1306 n.1 (E.D. Va. 1981). Whether to enforce Rule 10's
requirements is discretionary, but it is appropriate to do so
when it is necessary to facilitate a clear presentation of
the claims. See Benoit v. Ocwen Fin. Corp.,
Inc., 960 F.Supp. 287 (S.D. Fla. 1997) (requiring
compliance with Rule 10 where allegations were confusing and
conclusory, claims were commingled, and it was impossible to
determine nature of claims).
The Proposed Pleading does not Comply with Rule 10
proposed first amended complaint (FAC) alleges that the
action arises under the FTCA. (Doc. 51-1 at 3.) Under the
FTCA, Congress authorized suits against the United States for
money damages “for injury or loss of property, or
personal injury or death caused by the negligent or wrongful
act or omission of any employee of the Government while
acting within the scope of his office or employment, under
circumstances where the United States, if a private person,
would be liable . . . .” 28 U.S.C. § 1346(b)(1).
The Act gives federal courts exclusive jurisdiction over such
claims. Id. The FTCA's waiver of immunity
permits causes of action against the United States arising
out of certain torts committed by federal employees acting
within the scope of their employment. See Dolan v. U.S.
Postal Service, 546 U.S. 481, 483 (2006). “[T]he
extent of the United States' liability under the FTCA is
generally determined by reference to state law.”
Molzof v. United States, 502 U.S. 301, 305 (1992);
Erlin v. United States, 364 F.3d 1127, 1132 (9th
Cir. 2004) (stating that underlying cause of action in an
FTCA suit comes from state law); Schwarder v. United
States, 974 F.2d 1118, 1127 (9th Cir. 1992) (stating
that “state law governs the scope of the United
States' substantive tort liability . . .
.”) (emphasis in original).
under the statutory procedure set forth in 28 U.S.C. §
2675(a), a “tort claimant may not commence proceedings
in court against the United States without first filing [his]
claim with an appropriate federal agency and either receiving
a conclusive denial of the claim from the agency or waiting
for six months to elapse without a final disposition of the
claim being made.” Jerves v. United States,
966 F.2d 517, 519 (9th Cir. 1992); see Brady v. United
States, 211 F.3d 499, 502 (9th Cir. 2000) (a claimant
under the FTCA must comply with § 2675(a) before a
district court can exert subject matter jurisdiction over the
claim). The “‘claim ...