Free Response in Opposition to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Thomas D. McCaffrey, Plaintiff v. John Snow, Secretary of the Treasury, and, Michael Chertoff, Director of the Department of Homeland Security, Defendants Defendants, John Snow, Secretary of the Treasury and Michael Chertoff,
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Civ-04-0701-PHX-SMM DEFENDANT'S OPPOSITION TO MOTION TO AMEND; MOTION FOR PROTECTIVE ORDER

Director of the Department of Homeland Security, by and through undersigned counsel, respectfully submit their Opposition to Plaintiff's Motion to Amend Complaint with respect to proposed paragraph 27. Further, the defendants respectfully move for a Protective Order, pursuant to Rule 26(c) F.R.Civ.P., to preclude a second deposition of fact witness Kathy Sinclair by the plaintiff. The defendants Opposition the Motion to Amend and defendants Motion for a Protective Order Strike are supported by the attached Memorandum of Points and Authorities and other matters of record. Michael Chertoff, by operation of law, is substituted for the former Director of the Department of Homeland Security. Rule 25(d)(1), F.R.Civ.P.
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Respectfully submitted this 22nd day of May 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiff has requested leave of court to file a Second Amended Compliant in this action. The defendants oppose the addition of paragraph 27. The United States Supreme Court has established that motions to amend should be granted unless the district court determines that there has been a showing of: (1) undue delay; (2) bad faith or dilatory motives on the part of the movant; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the opposing party; or (5) futility of the proposed amendment. Foman, 371 U.S. at 182. "Generally, this determination should be performed with all inferences in favor of granting the motion." Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir.1999) (citing DCD Programs Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir., 1987). Significantly, "[t]he party opposing amendment bears the burden of showing prejudice," futility, or one of the other permissible reasons for denying a motion to amend. DCD Programs, 833 F.2d at 187. Regarding the futility of amendments to add claims, "[a] district court does not err in denying leave to amend where the amendment would be futile ... or would be subject to dismissal." Saul v. United States, 928 F.2d 829, 843 (9th Cir.1991) (citations omitted). " A proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir., 1988). The plaintiff's proposed amendment is, indeed, futile as to proposed paragraph 27 as the underlying events, were known to the plaintiff as early as May, 2001.
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I.

The Motion to amend as to paragraph 27 must be denied. All the proposed amendments the Complaint relate to the alleged retaliatory

assignment of Treasury Enforcement Communications System (TECS) database records to McCaffrey beginning in May of 2001. Thus, McCaffrey failed to file a timely claim of unlawful retaliation. Now some five years after he knew or should have know of the assignment of these cases to him, he seeks to file an Amended Complaint. As McCaffrey failed to timely exhaust his administrative remedies, this Court is without subject matter jurisdiction to grant any relief. Sommatino v. United States, 255 F.3d 704, 707-08 (9th Cir., 2001); Brown v. Puget Sound Elec., 732 F.2d 726, 729-30 (9th Cir., 1984); Pacheco v. Mineta, 2006 WL 1195989 *2-*7 (5th Cir. 2006). Although the Court did not set a deadline for amendments to the pleadings in the March 3, 2005 Scheduling Order, the plaintiff clearly knew about the this alleged retaliation prior to February 22, 2005 when the Proposed Case Management Plan was filed. II. Rule 16 F.R.Civ.P. governs this request to amend the Complaint. As a Scheduling Order has been entered, the standards of Rule 15 do not control the consideration of plaintiffs' motion. Upon entry of a Rule 16 Scheduling Order, a party seeking to amend its pleadings must satisfy the standards of Rule 16 before the amendment will be allowed. Johnson v. Mammoth Recreations, 975 F.2d 604, 607-08 (9th Cir.1992); Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir.1994); Riofrio Anda v. Ralston Purina, 959 F.2d 1149, 1154-55 (1st Cir.1992). Rule 16 provides that the scheduling order "shall not be modified except upon a showing of good cause and by leave of the district judge ..." Fed.R.Civ.P. 16(b); Johnson, 975 F.2d at 608. This rule was designed to allow the district court to manage its calendar and to facilitate more efficient disposition of cases by settlement or by trial. Johnson, 975 F.2d at 610-11; see Rule 16 Advisory Committee Notes (1983 Amendment). To permit a party to disregard a Rule 16 order by an appeal to the standards of Rule 15 would "undermine the court's ability to control its docket, disrupt the agreed-upon course of the
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litigation, and reward the indolent and the cavalier." Johnson, 975 F.2d at 610-11; see also Riofrio, 959 F.2d at 1155. The focus of the Rule 16 "good cause" inquiry is on the on the moving party's diligence, or lack thereof, in seeking amendment. Johnson, 975 F.2d at 608-09. The district court may allow a post-deadline amendment if the deadline could not reasonably have been met despite the diligence of the moving party. Id. If the moving party was not diligent in seeking amendment, leave to amend should be denied. Id. Once a party demonstrates good cause to amend under Rule 16(b), the court next must apply the standards of Rule 15(a) to determine whether the proposed amendment should be allowed. Marcum v. Zimmer, 163 F.R.D. 250 (S.D.W.Va.1995); Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C.1987). Therefore, leave to permit the filing of a Second Amended Complaint with respect to paragraph 27 must be denied. Title VII specifically requires a federal employee to timely exhaust his or her administrative remedies as a precondition to filing suit. Vinieratos v. U.S. Dept. of Air Force, 939 F.2d 762, 768 (9th Cir. 1991). Such exhaustion requires that the plaintiff raise the discrimination claims at issue or "like or reasonably related" claims in an administrative action. Yamaguchi v. U.S. Dept. of Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997). As the Ninth Circuit has noted: [W]here, as here, the complainant has only himself to blame for the absence of an administrative ruling on the merits of his claim, it is fair to conclude that he has failed to comply with the administrative exhaustion requirement. It is not the role of the federal judiciary to straighten out a mess that is the complainant's own doing. Vinieratos v. U.S. Dept. of Air Force, 939 F.2d 762, 773 (9th Cir. 1991). The allegations of retaliation set forth in paragraph 27 relate to time-barred events which are non-justiciable. Howell v. Department of the Army, 975 F. Supp. 1293 (M.D. Ala. 1997), aff'd 130 F2d. 445 (11th Cir. 1997)(Federal employee must consult Equal
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Employment Opportunity (EEO) counselor at the workplace within 45 days of allegedly discriminatory act.). Laches bars those claims where a plaintiff's unreasonable delay in bringing suit harms the defendant. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121-22 (2002); Smith v. Caterpillar, Inc., 338 F.3d730, 733 (7th Cir. 2003); Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 824 (7th Cir. 1999). The equitable defense of laches consists of two elements: (1) a lack of diligence by the plaintiff, and (2) prejudice resulting from the delay. Under this two prong approach, the plaintiff bears the burden of explaining the delay in bringing suit or relying on the alleged events. Wilmes v. U.S. Postal Service, 810 F.2d 130, 133-35 ( 7th Cir. 1987); Lingenfelter v. Keystone Consol. Industries, Inc., 691 F.2d 339, 340-42. (7th Cir., 1982). The plaintiff bears the burden of proof of demonstrating that his delay was not unreasonable. Zelazny v. Lyng, 853 F.2d 540, 541 (7th Cir. 1988). This is a burden that he cannot meet. The plaintiff is barred by laches from raising the events referred to in paragraph 27 of the proposed Amended Complaint. CONCLUSION For the reasons stated herein, paragraph 27 of the Proposed Amended Complaint must be stricken and the plaintiff precluded from raising or in anyway relying upon these remote events at the time of trial. MOTION FOR A PROTECTIVE ORDER On January 30, 2006, plaintiff counsel took the deposition of fact witness Ms. Kathy Sinclair, who is a Bureau of Immigration and Customs Enforcement (BICE) employee. Mr. McCaffrey was present during her deposition. Ms. Sinclair is a subordinate to McCaffrey in the BICE workplace. Ms. Sinclair is assigned as a clerk typist for the agent group to which McCaffrey is assigned. On or about October 31, 2005, she overheard a discussion McCaffrey and his Group Supervisor, Mr. William J. O'Neill, regarding the Treasury Enforcement Criminal Records (TECS) database records system. These TECS reports are the basis for the Motion to file a Second Amended Complaint.
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During the course of her deposition Sinclair testified that McCaffrey approached her, discussed the fact that she was going to be deposed and that stated he was sorry that she had to become involved in his dispute with the agency. EXHIBIT 1 at pages 21-22. Subsequent to her deposition, at or about 10:30 a.m., on January 31, 2006, McCaffrey approached Sinclair's desk wearing a tee shirt emblazoned with the words "You have the right to remain silent." He also had his notes, from her deposition, in his hand. He immediately began speaking, in close proximity to Ms. Sinclair, referencing testimony that she had given the pervious day. Ms. Sinclair had a very profound emotional reaction to this incident. It became necessary for her to take sick leave for the rest of the day. The defendant issued a Cease and Desist Order to McCaffrey on February 6, 2006, EXHIBIT 2, and otherwise took those actions required by law when an employee alleges that work place harassment and/or intimidation has taken place. On February 7, 2006, plaintiff's counsel demanded dates for a second deposition of Ms. Sinclair to "get to the bottom of this agency harassment of his client." On or about April 10, 2006, McCaffrey filed an EEO Complaint (#HS-06-ICE-1029)against Kathy Sinclair and the ICE SAC Phoenix alleging retaliation based on the issuance of the February 6, 2006 Cease and Desist order. On April 27, 2006, plaintiff counsel again demanded dates to re-depose Kathy Sinclair "concerning her allegations of harassment by Agent McCaffrey..." The Court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. Proc. 26(c) F.R.Civ.P. "Good cause" is established when it is specifically demonstrated that disclosure will cause a "clearly defined and serious injury." Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995). In this regard, the defendants must make a specific demonstration of facts to support their request for the protective order and may not rely on conclusory or speculative statements concerning the need for a protective order. Specifically, good cause exists under Rule 26(c) when justice requires the protection
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of a party or a person from any annoyance, embarrassment, oppression, or undue burden or expense. Moreover, the showing required under Rule 26(c) must be sufficient to overcome plaintiffs' legitimate and important interests in trial preparation. Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir.1985) ("[T]rial preparation and defense ... are important interests, and great care must be taken to avoid their unnecessary infringement."). In this case, the plaintiff has no legitimate reason to subject Ms. Sinclair to a second deposition just because McCaffrey and his attorney want to "get to the bottom of her harassment of McCaffrey for filing a complaint against him." Sinclair's complaint has absolutely nothing to do with the issues in this case. Rather, it has everything to do with McCaffrey's alleged misconduct in the work place with a subordinate co-employee. While Rule 26(c), "is not a blanket authorization for the court to prohibit disclosure of information whenever it deems it advisable to do so, but is rather a grant of power to impose conditions on discovery in order to prevent injury, harassment, or abuse of the court's processes." Bridge C.A.T. Scan Assocs. v. Technicare Corp., 710 F.2d 940, 944-45 (2d Cir.1983). Further, Rule 45 F.R.Civ.P. provides that "[a] party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena." When, as here, a discovery request "approach[es] the outer bounds of relevance and the information requested may only marginally enhance the objectives of providing information to the parties or narrowing the issues, the Court must then weigh that request with the hardship to the party from whom the discovery is sought." Carlson Companies, Inc. v. Sperry & Hutchinson Co., 374 F.Supp. 1080, 1088 (D.C.Minn.1974). Plaintiff's discovery tactics would further intimidate, inhibit, or discourage persons such as Ms. Sinclair from pursuing her claims for workplace harassment. Such discovery would clearly contravene the remedial effect intended by Congress in enacting Title VII, and should not be tolerated by the federal courts. In fact, it was to empower federal courts to prevent such unjust effects that Rule 26(c) of the Federal Rules of Civil Procedure was
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enacted. cf. Priest v. Rotary, 98 F.R.D. 755, 761 (N.D. Cal., 1983). Subjecting Ms. Sinclair to a second deposition can only serve to further intimidate a fact witness in this litigation. A fact finding team from the Office of Professional Responsibility, Department of Homeland Security, Washington, D.C. is currently investigating the events of January 31, 2006. The deposition would likely interfere with this fact finding investigation. Therefore, the defendants respectfully request this Court to enter a Protective Order to preclude a further deposition of Ms. Sinclair by the plaintiff. Respectfully submitted this 22rd day of May, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s\ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney CERTIFICATE OF SERVICE I hereby certify that on May 22, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
Jeffery F. Arbetman Attorney at Law 349 North 4th Avenue Phoenix, Arizona 85003

attorney for plaintiff s\ John R. Mayfield

Office of the U.S. Attorney

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