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Murphy v. Fisher

United States District Court, D. Arizona

October 22, 2019

Julie Murphy, Plaintiff,
Heather Fisher, Defendant.



         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.


         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.


         I. Mo ...

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