United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE.
Pending
before the Court are (1) Plaintiff's motion for leave to
file an amended complaint (Doc. 18) and (2) Plaintiff's
motion to seal (Doc. 21). For the following reasons, both
motions will be granted. Additionally, because Plaintiff
wishes to add a new defendant whose presence will eliminate
the existence of complete diversity between the parties, the
Court will remand this action to state court once the amended
complaint has been filed.
BACKGROUND
In May
2019, Plaintiff initiated this lawsuit by filing a complaint
in Maricopa County Superior Court. (Doc. 1-2 at 4-7.) In a
nutshell, the complaint alleges that Defendant committed the
tort of defamation by transmitting a false complaint about
Plaintiff, who is a registered nurse, to the Arizona Board of
Nursing and then making additional defamatory statements
about Plaintiff “to Plaintiff's employer, the
Arizona State Board of Nursing, the Arizona Department of
Health Services and the Arizona Department of Child Safety
and to other persons presently unknown to Plaintiff.”
(Id. at 5-6 ¶¶ 7-14.)
On June
22, 2019, Defendant removed this action to federal court.
(Doc. 1.) The sole jurisdictional basis for the removal was
diversity jurisdiction, because Plaintiff is a citizen of
Arizona and Defendant is a citizen of California.
(Id. at 2; see also Doc. 7 at 2 [amended
removal notice].)
On
August 7, 2019, the parties filed their Rule 26(f) report.
(Doc. 15.) Among other things, the report explains that
Defendant is a psychotherapist who made the challenged
statements after receiving information about Plaintiff from a
patient who is not a party in this case. (Id. at 5.)
The report also states that Defendant's anticipated
defenses will include that (1) as a mandatory reporter, she
has absolute immunity, under both California and Arizona law,
for making reports to regulatory agencies, and (2) she
“reserves the right to invoke the affirmative defense
of truth” because “the information provided to
[Defendant] was credible under the relevant
circumstances” and “it was [Defendant's]
understanding from the original reporter, that they were in
fact true.” (Id. at 3-4.) Finally, Plaintiff
requested in the report that she be afforded some additional
time to “seek to amend her complaint to add additional
defendants, ” and Defendant didn't oppose this
request but merely asked the Court to set a “date
certain” for Plaintiff to pursue such an amendment.
(Id. at 2.)
On
August 27, 2019, the Court issued the Rule 16 scheduling
order. (Doc. 17.) Among other things, it established a
deadline of October 28, 2019 “for joining parties,
amending pleadings, and filing supplemental pleadings.”
(Id. at 1.)
On
September 17, 2019, Plaintiff filed a motion for leave to
file an amended complaint. (Doc. 18.) The motion explains
that, at the time Plaintiff filed the initial complaint, she
was “unaware of the alleged source of the statements
published by Defendant Fisher that are alleged to have been
defamatory, ” but Plaintiff has since learned through
discovery that the source was Brian Carlin, who was one of
Defendant's patients. (Id. at 1-2.) Accordingly,
Plaintiff wishes to add Carlin as a defendant. (Id.)
Plaintiff's proposed amended complaint further notes that
Carlin is a citizen of Arizona and thus states that
“[s]uch diversity jurisdiction as this court had at the
time of the removal is now extinguished by the addition of
Defendant Carlin.” (Doc. 18-1 at 2.)
On
October 1, 2019, Defendant filed a response to the motion to
amend. (Doc. 19.) Defendant argues the motion should be
denied on futility grounds because Carlin's statements to
Defendant “are protected by the psychotherapist patient
privilege and therefore cannot be the subject of a defamation
action.” (Id. at 1.) Notably, Defendant does
not suggest the amendment is being sought as part of a
bad-faith effort to defeat diversity jurisdiction.
On
October 4, 2019, Plaintiff filed a reply in support of her
motion to amend. (Doc. 23.) Plaintiff argues the proposed
amendment is not futile because (1) the
psychotherapist-patient privilege is not absolute under
California or Arizona law and (2) there are various reasons
why the privilege may be deemed inapplicable or waived here.
(Id.)
On
October 4, 2019, Plaintiff also filed a motion to seal one of
the exhibits filed in support of her reply. (Doc. 21.) The
motion explains that “[t]he document in question is an
email from Defendant Heather Fisher relating to certain
confidential matters involving Brian Carlin, the person whom
Plaintiff seeks to add as a defendant in this matter. While
it is Plaintiff's position . . . that Mr. Carlin has
waived any confidentiality privilege as to such document with
respect to Plaintiff, the subject matter in the email is very
sensitive and Plaintiff does not mean to disseminate or
publicize the contents of the email beyond that which is
absolutely necessary and therefore seeks to file it under
seal.” (Id. at 1.)
Defendant
did not file a response to the motion to seal.
DISCUSSION
I.
Mo ...