Free Response to Motion - District Court of Arizona - Arizona

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B URCH & C RACCHIOLO, P.A. 702 East Osborn Road Phoenix, Arizona 85014 Telephone (602) 274-7611 Facsimile (602) 234-0341 [email protected] Daniel R. Malinski, SBA #005911

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (2) Plaintiff Robert Cuevas's motion for leave to file a second amended complaint should be denied for the following four reasons: (1) Defendants would be prejudiced by the proposed amendments due to the extensive time and money invested in filing a comprehensive motion to dismiss plaintiff's first amended complaint; Plaintiff unduly delayed proposing the amendments until after defendants had filed their comprehensive motion to dismiss; vs. City of San Luis, Arizona; Police Department of City of San Luis, Arizona; and John Miranda, Former Chief of Police, City of San Luis, Arizona and Alex Ruiz, Former City Administrator for the City of San Luis, Arizona, both in their official and individual capacities, Defendants. Robert A. Cuevas, Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Case No. CIV-04-0476-PHX-PGR DEFENDANTS JOHN MIRANDA, CITY OF SAN LUIS, CITY OF SAN LUIS POLICE DEPARTMENT, AND ALEX RUIZ' RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Attorneys for Defendants John Miranda, City of San Luis, City of San Luis Police Department, and Alex Ruiz

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(3)

The proposed amendments were brought in bad faith and merely to avoid responding to defendants' comprehensive motion to dismiss; and The proposed amendments are futile because they do not cure the fatal deficiencies in plaintiff's case, as addressed by defendants' motion to dismiss.

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After a brief overview of the procedural history of this case, each of these factors will be discussed. I. Overview. On March 9, 2004, plaintiff filed this lawsuit against defendants the City of San Luis, et al., Yuma County, et al., and the Department of Homeland Security, et al. Over the course of the next four years, the federal and county defendants were dismissed, leaving only the city defendants. On January 10, 2008, plaintiff sought leave to file his first amended complaint, which defendants did not oppose. On March 6, 2008, plaintiff's first amended complaint was filed and defendants, relying on that complaint, filed a comprehensive motion to dismiss on April 11, 2008. On May 12, 2008, the court granted plaintiff an extension to respond to defendants' motion to dismiss, which plaintiff filed on May 22, 2008. That same day, plaintiff filed his motion for leave to file second amended complaint, and his proposed second amended complaint. Plaintiff argues he should be permitted to amend his complaint (for the second time in two months) to "clarify" and "accurately reflect" the evidence in this case. [See Plaintiff's Motion to File Second Amended Complaint, p. 3.] Defendants now oppose that motion for all of the reasons discussed below. ///

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II.

Plaintiff's motion for leave to file a second amended complaint should be denied because none of the factors courts consider weigh in favor of allowing the amendments. "[L]eave to amend is not to be granted automatically." Jackson v. Bank

of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990); see also Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). Instead, courts consider four factors when deciding whether a motion for leave to amend the complaint should be granted: (1) (2) whether the opposing party would be prejudiced by the amendment, whether the plaintiff unduly delayed in proposing the amendments, whether the amendments were proposed in bad faith, and whether the amendments are futile.

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Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999); see also Thornton v. McClatchy Newspapers, Inc., 262 F.3d 789, 799 (9th Cir. 2001) (leave to amend "is subject to qualification") (internal quotations omitted); Jackson, 902 F.2d at 1388 ("A trial court may deny such a motion [to amend] if permitting an amendment would prejudice the opposing party, produce an undue delay in the litigation, or result in futility for lack of merit."). Here, all of the factors weigh in favor of denying plaintiff's motion. Each will be discussed below. A. Defendants would be prejudiced by the proposed amendments because they have invested considerable time and money in responding to plaintiff's first amended complaint.

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to the opposing party." Wood v. Santa Barbara Chamber of Commerce, 705 F.2d 1515, 1520 (9th Cir. 1983). And "[p]rejudice to the opposing party is the most important factor" considered by the court. Jackson, 902 F.2d at 1388. Plaintiff has, at the eleventh hour, moved for leave to amend his complaint rather than responding to the substantive issues raised in defendants' motion to dismiss. On April 11, 2008, defendants filed a comprehensive motion to dismiss addressing each of plaintiff's nine claims and their fatal deficiencies. But plaintiff now argues he should be permitted to amend his complaint (for the second time in two months) to "clarify" and "accurately reflect" the evidence in this case, thereby attempting to avoid dismissal by re-wording the same claims subject to dismissal. [See Plaintiff's Motion to File Second Amended Complaint, p. 3.] Defendants invested substantial time and money into their motion to dismiss and would be unfairly prejudiced by allowing plaintiff's proposed amendments.1 Therefore, plaintiff's motion should be denied. B. Plaintiff unduly delayed proposing the amendments by waiting to file his motion until after defendants filed their motion to dismiss.

If the plaintiff unduly delays proposing the amendments to his or her complaint, the trial court does not abuse its discretion in denying the motion for

See Roberts v. Ariz. Bd. of Regents, 661 F.2d 796, 798 (9th Cir. 1981) ("Here the district court made a specific finding of prejudice to the opposing party, noting that the retaliatory discharge issue was raised at the eleventh hour, after discovery was virtually complete and the Board's motion for summary judgment was pending before the court."); see also Wood, 705 F.2d at 1520 (defendants would have been unduly prejudiced by the proposed amendments because they were "offered by Wood more than two years after he filed his original complaining and would have inverted the legal theory under which the defendants were charged with liability. By itself, the last-minute changes in trial preparation this would have required might not have been unduly prejudicial. . . . However, there was sufficient prejudice to deny the motion to amend in light of the futility of the motion and the apparent bad faith with which it was offered.").

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leave to amend. Chodos v. W . Publ'g Co., Inc., 292 F.3d 992, 1003 (9th Cir. 2002). "Relevant to evaluating the delay issue is whether the moving party knew or should have known the facts and theories raised by the amendment in the original pleading." Jackson, 902 F.2d at 1388. Here, plaintiff specifically states that he is moving for leave to file a second amended complaint "to clarify and correct his pleading, as well as to accurately reflect what the evidence will be in this matter." By plaintiff's own admission, all of this information was within his knowledge and control from the moment he filed his original complaint over four years ago and when he filed his first amended complaint just two months ago. See Chodos, 292 F.3d at 1003 ("The district court denied the motion, finding that those `new' facts had been available to Chodos even before the first amendment to his complaint. Given this finding, the district court's conclusion that the motion to amend was made after undue delay did not constitute an abuse of its discretion."). All of plaintiff's proposed amendments were known to him at the time he filed his original complaint and at the time he filed his first amended complaint. Yet he chose to wait to propose the amendments until after defendants had filed their comprehensive motion to dismiss. Plaintiff's undue delay in proposing the amendments not only weighs in favor of denying his motion but also demonstrates his bad faith motive and the prejudice defendants would suffer if he was permitted to amend his complaint at this time. C. Plaintiff proposed the amendments in bad faith for the sole purpose of avoiding having to respond to defendants' comprehensive motion to dismiss.

"Bad faith on the part of the moving party also supports denying the motion to amend." Lockheed Martin, 194 F.3d at 986. Bad faith can be

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inferred if the plaintiff proposes the amendments in the face of a dispositive motion or if the plaintiff files repetitious motions to amend. See Lockheed Martin, 194 F.3d at 986 ("Facing a summary judgment motion, Lockheed sought to amend its complaint to add causes of action on which discovery had not been undertaken. The district court noted that this might reflect bad faith on the part of Lockheed."); see also W ood, 705 F.2d at 1520 ("The bad faith of W ood in offering his motion to amend can be inferred from . . [the fact that] repetitious motions to amend are a favorite tactic of W ood, as is demonstrated by a similar motion filed in this case in January 1981 and by a series of amended complaints in a prior related lawsuit."). Again, plaintiff filed his original complaint over four years ago and filed an amended complaint just two months ago. Now plaintiff purportedly seeks to clarify his pleading to accurately reflect the evidence in this case, only after defendants filed their comprehensive motion to dismiss. Plaintiff simply chose to ignore defendants' motion to dismiss and instead decided to merely change the wording of his amended complaint in the hopes he can avoid dismissal.2 Additionally, plaintiff has already amended his complaint and all of the proposed amendments he is trying to make now could have been made then, before defendants relied on it to file their motion to dismiss. The court has ample facts to infer plaintiff acted in bad faith by proposing his amendments at this time. Plaintiff's motion for leave to file second amended complaint is simply a veiled attempt to avoid dismissal without having to respond to the issues raised in defendants' motion to dismiss. For this

Though plaintiff did file a response to defendants' motion to dismiss, he did not address the issues raised in the motion to dismiss. Instead, plaintiff repeatedly referred to plaintiff's second amended complaint. [Plaintiff's Response to Defendants' Motion to Dismiss, p. 3-4.]

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reason alone, plaintiff's motion should be denied. D. Plaintiff's proposed amendments are futile because they do not cure the fatal deficiencies of plaintiff's case, as addressed in defendants' motion to dismiss.

"W here the legal basis for a cause of action is tenuous, futility supports the refusal to grant leave to amend." Lockheed Martin, 194 F.3d at 986. Additionally, the court properly denies a motion for leave to amend "if `it is clear . . . that the complaint could not be saved by any amendment." Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008) quoting Polich v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir. 1991). Plaintiff's proposed amendments are futile because they would not save his claims from dismissal. Other than delaying disposition of defendants' motion to dismiss, the proposed amendments would provide plaintiff "with no practical benefits" whatsoever. See W ood, 705 F.2d at 1520. Even if plaintiff was permitted to file his second amended complaint his rights were not violated,3 there is still no municipal vicarious liability under § 1983, and the police officers and prosecutors still have immunity. Because plaintiff's proposed amendments are futile, and he cannot cure the defects in his case by simply amending the wording of his complaint, his motion for leave to amend should be denied. III. Conclusion. All of the factors courts consider when deciding motions for leave to

Plaintiff is now trying to allege defendants did not have probable cause. But "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." Epstein v. Washington Energy, Co., 83 F.3d 1136, 1140 (9th Cir. 1996).

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amend weigh in favor of denying plaintiff's motion: defendants have invested considerable time and money in contesting plaintiff's first amended complaint and would be prejudiced by the proposed amendments; plaintiff unduly delayed proposing the amendments; plaintiff has proposed the amendments in bad faith; and the amendments would be futile in any event. Therefore, plaintiff's motion for leave to file second amended complaint should be denied. DATED this 9th day of June, 2008. BURCH & CRACCHIOLO, P.A.

By: s/ Daniel R. Malinski Daniel R. Malinski 702 E. Osborn Road, Suite 200 Phoenix, AZ 85014 Attorneys for Defendants John Miranda, City of San Luis, City of San Luis Police Department, and Alex Ruiz

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 s/ Melanie W right

CERTIFICATE OF SERVICE XXX I hereby certify that on June 9, 2008, 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: Robert M. Cook, Esq. THE LAW OFFICES OF ROBERT M. COOK 207 W est Second Street Yuma, Arizona 85364 Attorneys for Plaintiff XXX I hereby certify that on June 9, 2008, I served the attached document by: U.S. Mail on the following, who are not registered participants of the CM/ECF System: David A. Domina, Esq. DOMINA LAW PC 2425 S. 144 th Street Omaha, NE 68144 Attorneys for Plaintiff XXX I hereby certify that on June 9, 2008, I MAILED a courtesy copy of the attached document to: The Honorable Paul G. Rosenblatt United States Magistrate Judge Sandra Day O'Connor U.S. Courthouse, Suite 621 401 W est W ashington, SPC 56 Phoenix, AZ 85003-2156

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