Adame v. City of Surprise

          ORDER

          G. Murray Snow Chief United States District Judge.

         Pending before the Court is the Defendants' Motion for Summary Judgment (Doc. 87) and Plaintiffs' Motion for Leave to Amend the Complaint (Doc. 97).

         BACKGROUND

         The record, viewed in the light most favorable to the Plaintiffs, shows the following: Plaintiffs' relative, decedent Derek Adame, was sleeping in a Nissan Sentra around 1:00 A.M. on November 26, 2016, when Defendant Joseph Gruver, a police officer for the City of Surprise, drove past the vehicle. Officer Gruver was responding to a suspicious vehicle call. He parked his patrol car nearby and ran the license plate of the vehicle and the plates came back as stolen. (Doc. 88-2 at 5). At this time, Officer Gruver did not know any other additional information about the vehicle. Before exiting his vehicle, Officer Gruver turned on the police vehicle's bright “takedown” lights.

         Officer Gruver approached Adame's vehicle from the passenger side. (Doc. 91 Ex. E at 0:30-0:50) As he came around the back of the vehicle, Officer Gruver noticed that there was an individual in the driver's seat, who was “leaning over to the side.” (Doc. 88- 2 at 6). Officer Gruver opened the passenger side door, drew his weapon and immediately stated, “Surprise Police. Let me see your hands.” (Doc. 91, Ex. E at 1:15-1:17). He instructed Adame to keep his hands on the steering wheel and said, “until I figure out what's going on, you're going to stay right there.” (Id. at 1:39-1:48, 2:07-2:13). At the same time, another Surprise Police Officer, Shaun McGonigle was approaching. (Id., Ex. C At 0:00-0:35). Officer Gruver again told Adame to keep his hands up and visible. (Id. at 3:10-3:15).

         Adame initially complied. He then started the car while maintaining his left hand on the steering wheel. (Doc. 91 Ex. C at 0:37). After Adame started the car, Officer Gruver entered the vehicle. (Id. Ex. E at 3:26-3:28; id., Ex. C. at 0:37-0:41). Officer McGonigle arrived by the car as it began to pull away. (Id. Ex. C at 0:25-0:39). As the car began to accelerate, Officer Gruver yelled “Keep them up! Keep them up right now! Don't move!” and then immediately fired two shots. (Id. Ex. E at 3:21-3:31). The passenger side door remained open as the shots were fired. (Doc. Ex. C at 0:35-0:43). When he was shot, Adame's left hand was on the steering wheel and his right hand was in the area by the gearshift. (Id., Ex. E. 3:28-3:30). Adame's upper body fell on the center console as the vehicle sped away, and Officer Gruver fell out of the vehicle. (Id. at 3:31-3:38). Adame's vehicle ultimately crashed into a truck parked in a neighboring driveway. (Id. Ex. C at 1:31). After the vehicle crashed, but before the police were able to inspect the vehicle, Officer Gruver was asked if Adame had a gun. Officer Gruver responded, “No. He took off with me in the car.” (Id. at 7:35-7:43). At no time during this encounter did either officer see a weapon in the vehicle.

         Maria Adame and Clarisa Abarca (“Plaintiffs”) then filed this action for relief. Defendants now move for summary judgment on Plaintiffs' remaining claims.

         DISCUSSION

         I. Fourth Amendment Standing

         Fourth Amendment rights are personal and may not be asserted vicariously. Alderman v. U.S., 394 U.S. 165, 174 (1969). Fourth Amendment standing law applies to claims made against public officials and entities. See Longoria v. Pinal City, 2015 WL 13654010 at *2 (D. Ariz. 2015). For Plaintiffs who bring 1983 actions, “the survivors of an individual killed as a result of an officer's excessive use of force may assert a Fourth Amendment claim on that individual's behalf if the relevant state's law authorizes a survival action.” Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998). Arizona's state law authorizes a survival action by a personal representative of the decedent's estate. See Ariz. Rev. Stat. § 14-3110. If a representative of the decedent's estate does not bring the claim under the Fourth Amendment, that claim cannot proceed. See Smith v. City of Fontana, 818 F.2d 1411, 1417 (9th Cir. 1987) (“The children were not directly subjected to the excessive use of state force and therefore cannot maintain personal causes of action under section 1983 in reliance on this Fourth Amendment theory.”), overruled on other grounds, Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999) (en banc). Plaintiffs, recognizing this error in their complaint, now move to amend to add Maria Adame as personal representative of Derek Adame's estate under Federal Rule of Civil Procedure 17.

         Plaintiffs in this case purportedly agreed to dismiss all claims on behalf of the estate with prejudice in a prior order. (See Doc. 52). After briefing was completed on these two pending motions, the Court requested the parties to submit supplemental briefing on whether the Plaintiffs had authority or standing to agree to the dismissal of the estate's claims with prejudice. (Doc. 105). Nothing provided by either party in that briefing suggested there was a personal representative appointed at the time of the stipulation, or that there was otherwise a basis on which the estate's claims could be dismissed with prejudice. Therefore, in this order, the Court is both reconsidering the dismissal of the estate's claims with prejudice as well Plaintiffs' motion to amend the complaint.

         At the time the Court entered its order in granting the parties' stipulation, the estate did not have an authorized personal representative in the negotiations, and therefore, Plaintiffs in this action did not have standing to bring or agree to dismiss the claims of the estate. See Ariz. Rev. Stat. § 14-3703(c) (explaining that the personal representative of the estate has standing to sue and be sued). Accordingly, the stipulation to dismiss the claims of the estate with prejudice is void, because the estate itself did not agree to dismiss its claims through an authorized representative.

         Relief under Federal Rule of Civil Procedure 17 is available where “counsel makes understandable error in naming the real party in interest.” Jones v. Las Vegas Metropolitan Police Department, 873 F.3d 1123, 1128 (9th Cir. 2017). Under Rule 17, “[t]he Court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to . . .join.” Fed.R.Civ. P. 17(a)(3). “This [rule] is consistent with [the] longstanding policy in favor of deciding cases on the merits.” Jones, 873 F.3d at 1128. Like the plaintiffs in Jones, Plaintiffs here mistakenly named Ms. Adame and Ms. Abarca in their personal capacity as the party for their excessive force claim against the Defendants. “Rather than enter judgment immediately after noting the deficiency, the district court should . . . give[] plaintiffs a reasonable opportunity to substitute the right party.” Maria Adame is now the appointed personal representative of the estate of the decedent and is therefore the real party in interest for the Fourth Amendment claim. (Doc. 97, Ex. C). Contrary to Defendant's suggestion, Plaintiffs are not seeking to add an entirely new claim. Since the beginning of this case, Plaintiffs maintained an excessive force claim against the Defendants. (See Doc. 26 at 10) (asserting that “[t]he actions of Defendant Gruver . . . violated and deprived Adame of his clearly established and well-settled civil rights to be free from the use of excessive and deadly force. . . .”). It is on this claim that Plaintiffs now seek to substitute the personal representative of decedent's estate. Because the prior agreement of the parties did not extinguish the estate's excessive force claim, and because the estate is the only party who could properly bring this claim, Plaintiffs will be allowed to amend their complaint to substitute the personal representative of the estate for the named plaintiffs on the excessive force claim. Id. at 1129 (permitting plaintiffs to substitute the personal representative decedent's estate in an excessive force action for a different plaintiff under Federal Rule of Civil Procedure 17).

         If Defendants wish to conduct additional discovery relating to the decedent's estate, they may file a motion with the ...