Newell v. County of San Diego et al, No. 3:2012cv01696 - Document 32 (S.D. Cal. 2013)
Court Description: ORDER Denying 25 Plaintiff's Motion for Leave to File First Amended Complaint Without Prejudice. Signed by Judge Gonzalo P. Curiel on 10/15/2013. (srm)(jrd)
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Newell v. County of San Diego et al Doc. 32 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 TIMOTHY J. NEWELL, Plaintiff, v. COUNTY OF SAN DIEGO et al., 14 Defendants. 15 ) ) ) ) ) ) ) ) ) Case No. 3:12-cv-1696-GPC-BLM ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT (ECF NO. 25) INTRODUCTION 16 17 Plaintiff filed this action in the San Diego Superior Court on June 12, 2012, 18 alleging Defendants violated his civil rights and committed other torts against him. 19 (ECF No. 1-1.) Defendants removed the action to this Court on July 9, 2012. (ECF 20 No. 1.) Before the Court is Plaintiff’s Motion for Leave to File First Amended 21 Complaint, which Plaintiff filed on July 15, 2013. (ECF No. 25.) Defendants have 22 opposed the Motion. (ECF No. 31.) To date, the Court has not received a reply from 23 Plaintiff. The Court deems Plaintiff’s Motion suitable for disposition without oral 24 argument. See CivLR 7.1.d.1. Having reviewed the parties’ submissions and the 25 applicable law, and for the reasons that follow, the Court will DENY Plaintiff’s 26 Motion. 27 28 BACKGROUND Plaintiff alleges that, on November 29, 2011, “he drove to the Chula Vista 3:12-cv-1696-GPC-BLM Dockets.Justia.com 1 branch of the San Diego Superior Court to see what excess law enforcement vehicles 2 might be for sale.” (ECF No. 1-1, Compl. ¶ 9.) Plaintiff alleges he “parked in a 3 handicap parking space due to his damaged knee and he had a disability placard.” (Id.) 4 Plaintiff alleges he “saw several Ford Crown Victoria vehicles behind a chain link 5 fence that he thought might be for sale,” and that he “exited his vehicle and proceeded 6 towards the vehicles taking a photo of a white Crown Victoria vehicle.” (Id. ¶ 10.) 7 Plaintiff alleges he “decided to walk over to the garage to see if he could get 8 more information about the Crown Victoria[] vehicles,” and that, as he “was walking 9 towards the garage, [d]efendant [Elizabeth Palmer (“Palmer”)] suddenly appeared 10 blocking Plaintiff’s path and asked him why he was parked in a handicap parking 11 space.” (Id. ¶ 11.) Plaintiff alleges that he “replied that he was looking for a Crown 12 Victoria vehicle to purchase for his private security company.” (Id.) 13 Plaintiff alleges that Palmer “told Plaintiff that she did not believe him.” (Id. ¶ 14 12.) Plaintiff alleges that he “then informed [Palmer] that he was a retired San Diego 15 Police officer and that his badge and identification card were in his wallet which was 16 on the front seat of his vehicle.” (Id.) Plaintiff alleges that Palmer told him “to shut 17 up and then took his cell phone out of his hands.” (Id.) Plaintiff alleges that Palmer 18 “then ordered Plaintiff to sit his ass on the bumper of his vehicle and not to move,” and 19 that Plaintiff complied with her orders. (Id.) 20 Plaintiff alleges that Palmer “continued to question why Plaintiff was at the 21 Chula Vista courthouse,” and “then made a call and suddenly some Deputy Sheriffs 22 began jogging toward Plaintiff and [Palmer].” (Id. ¶ 13.) Plaintiff alleges that, “[once 23 the Deputy Sheriffs were present, Plaintiff was questioned yet again by [Palmer] as to 24 why he was at the Chula Vista courthouse.” (Id.) 25 Plaintiff alleges that Palmer “then opened the door to Plaintiff’s vehicle without 26 his consent and grabbed Plaintiff’s wallet.” (Id. ¶ 14.) Plaintiff alleges that he “began 27 to experience back spasms as a result of sitting on the edge of his bumper,” and that 28 when he “tried to get up to stretch his back, [Palmer] ordered Plaintiff to sit down,” and 2 3:12-cv-1696-GPC-BLM 1 that “Plaintiff, once again, complied.” (Id.) 2 Plaintiff alleges that Palmer then “went through Plaintiff’s wallet and asked him 3 who Lisa Khan was,” to which “Plaintiff replied that Lisa Khan was his significant 4 other.” (Id. ¶ 15.) Plaintiff alleges that he asked Plaintiff about Lisa Khan’s nationality 5 and “whether she was born in the United States.” (Id.) 6 Plaintiff alleges that Palmer “then ordered a Deputy Sheriff to pat Plaintiff 7 down,” and that the “Deputy Sheriff patted Plaintiff down in front of a steady stream 8 of the general public as they walked by watching what was transpiring.” (Id. ¶ 16.) 9 Plaintiff alleges that Palmer then “asked Plaintiff what his Social Security Number was 10 and where he was born.” (Id.) 11 Plaintiff alleges that Palmer then “ordered Plaintiff to rise because the Sheriff 12 Deputies wanted to take his photo.” (Id. ¶ 17.) Plaintiff alleges that he “was told to 13 stand against the wall of the garage and a Deputy Sheriff took his photo with a 14 camera.” (Id.) Plaintiff alleges that Palmer “then continued to go through Plaintiff’s 15 cell phone without his consent questioning him about the various photographs on his 16 phone.” (Id.) 17 Plaintiff alleges that Palmer then “ordered one of the Deputy Sheriffs at the scene 18 to run Plaintiff’s license plate while she continued to search the interior of Plaintiff’s 19 vehicle without his consent.” (Id. ¶ 18.) Plaintiff alleges that Palmer then told him 20 “that his vehicle registration was expired and that there was an outstanding warrant out 21 for his arrest as well as that his license was suspended.” (Id.) Plaintiff alleges that 22 Palmer “then asked if his license was suspended for failure to pay child support.” (Id.) 23 Plaintiff alleges that Palmer then told him “that a Deputy Sheriff was going to 24 write him up for a moving violation citation for driving on a suspended license.” (Id. 25 ¶ 19.) Plaintiff alleges that Palmer then asked him “if he had any scars or tattoos.” 26 (Id.) Plaintiff alleges that Palmer then ordered him “to delete any photographs he took 27 of any vehicles at the Courthouse,” and that Palmer “kept Plaintiff’s keys and told him 28 that he had twenty minutes to have someone get his vehicle or the vehicle was going 3 3:12-cv-1696-GPC-BLM 1 to be towed.” (Id.) 2 Plaintiff alleges that he “was eventually released without being charged with any 3 crime,” and that Defendants’ actions caused Plaintiff “imminent apprehension of 4 offensive contact to Plaintiff,” and that “offensive contact with Plaintiff directly 5 resulted.” (Id. ¶¶ 20, 21.) 6 Plaintiff asserts four causes of action, including: (1) violation of his Fourth 7 Amendment right to be free from unreasonable searches and seizures pursuant to 42 8 U.S.C. § 1983; (2) civil conspiracy to deprive Plaintiff of his civil rights; (3) negligent 9 hiring, training, retention, and supervision/unlawful policy, custom, or habit; (4) 10 intentional infliction of emotional distress; and (5) false arrest. 11 Plaintiff now wishes to add a cause of action for racial profiling in violation of 12 his Fourteenth Amendment right to equal protection under the law. (ECF No. 25-1.) 13 Plaintiff claims he has obtained information through discovery regarding Palmer’s 14 conduct and past history that “strongly suggests that [Plaintiff’s] race (African- 15 American) played a significant role in his unlawful detention on November 29, 2011.” 16 LEGAL STANDARD 17 Plaintiff moves for leave to amend pursuant to Federal Rule of Civil Procedure 18 15. Defendants correctly note in response, however, that the deadline to seek leave to 19 amend pleadings passed on October 22, 2012. (See ECF No. 10 at 1.) Defendants thus 20 assert that Plaintiff must “show good cause for the amendment.” Defendants are only 21 partly correct. 22 Ordinarily, Federal Rule of Civil Procedure 16(b)(4)’s good cause standard 23 governs the modification of a Rule 16 scheduling order, which includes the deadline 24 to seek leave to amend pleadings. This good-cause standard comports with Rule 25 6(b)(1), which provides: “When an act may or must be done within a specified time, 26 the court may, for good cause, extend time . . . .” Rule 6, however, provides more 27 specificity regarding the timing of a request to extend a deadline. 28 Rule 6 provides that, if a motion to extend is made after a deadline has expired, 4 3:12-cv-1696-GPC-BLM 1 the motion to extend may only be granted “if the party failed to act because of 2 excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Thus, if a party wishes to seek leave 3 to amend its pleadings after the deadline to do so has passed, the party must 4 demonstrate both good cause for modifying the scheduling order, in addition to 5 demonstrating excusable neglect for having missed the deadline. See O’Banion v. 6 Select Portfolio Servs., Inc., 2011 U.S. Dist. Lexis 133116, at * 13-15 (D. Idaho Nov. 7 16, 2011) (applying Rules 6 and 16 to motion for leave to file amended complaint that 8 was filed after deadline to file such a motion had passed); Weil v. Carecore Nat’l, LLC, 9 2011 WL 1938196, at *2 (D. Colo. May 19, 2011) (observing that other courts “have 10 held that a party moving to amend a pleading after a scheduling order deadline has 11 passed must support the motion by demonstrating both excusable neglect and good 12 cause”); see also Yeoman v. Ikea U.S.A. West, Inc., 2013 U.S. Dist. Lexis 96270, at 13 *11-14 (S.D. Cal. July 10, 2013) (applying Rules 6 and 16 to motion for leave to 14 extend discovery deadlines after deadlines passed). 15 In Pioneer Investment Services Co. v. Brunswick Associates Limited 16 Partnership, 507 U.S. 380, 395 (1993), the United States Supreme Court established 17 a four-part balancing test for determining whether there has been “excusable neglect.” 18 Although that case involved Federal Rule of Bankruptcy Procedure 9006(b)(1), the 19 Court reviewed the various contexts in which the phrase appears in the Federal Rules 20 of Civil Procedure and made clear that the test applies in all of those contexts. Id. at 21 395. The factors include: (1) the danger of prejudice to the non-moving party, (2) the 22 length of delay and its potential impact on judicial proceedings, (3) the reason for the 23 delay, including whether it was within the reasonable control of the movant, and (4) 24 whether the moving party’s conduct was in good faith. Id. The Pioneer test requires 25 a flexible approach whereby no one factor is more significant than any other. Id. at 395 26 n.14. The Court cautioned against “erecting a rigid barrier against late filings 27 attributable in any degree to the movant’s negligence.” Id. at 395 n.14. The weighing 28 of the Pioneer factors is left to the discretion of the court. Pincay v. Andrews, 389 F.3d 5 3:12-cv-1696-GPC-BLM 1 853, 860 (9th Cir. 2004). 2 The good cause standard primarily considers the party’s diligence in seeking to 3 modify a scheduling order. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 4 (9th Cir. 1992). The focus of the inquiry is on the moving party’s reasons for seeking 5 modification; “[i]f that party was not diligent, the inquiry should end.” Id. 6 “[C]arelessness is not compatible with a finding of diligence and offers no reason for 7 a grant of relief.” Id. DISCUSSION 8 9 Plaintiff asserts he should be granted leave to amend his Complaint “so that this 10 case and all of the issues and parties can be litigated in one judicial proceeding.” 11 Plaintiff asserts: “If this motion is not granted, ROLLINS1 will have no choice but to 12 dismiss the instant action without prejudice and file the proposed First Amended 13 Complaint as an original action.” Plaintiff asserts, “Another alternative would be to 14 file the proposed First Amended Complaint as a new lawsuit and then move to 15 consolidate this matter with the new lawsuit,” and thus, “[i]t is in the interests of 16 justice, judicial economy and judicial efficiency to grant this motion.” 17 In response Defendants argue that, in addition to Plaintiff’s failure to 18 demonstrate good cause to extend the pleading-amendment deadline, “Plaintiff has not 19 shown any newly discovered information or evidence,” nor “shown why he could not 20 have added these allegations before the deadline to amend expired.” 21 Defendants further argue that “the proposed FAC does not allege any facts 22 showing any defendant officer acted in an intentionally discriminatory manner, or that 23 discrimination was the motivating factor for any officer’s action.” 24 As far as the Court can tell from a side-by-side comparison of Plaintiff’s initial 25 Complaint and Plaintiff’s proposed FAC, the only additions to Plaintiff’s allegations 26 occur at paragraphs 32 and 34. Paragraph 32 of Plaintiff’s initial Complaint reads: 27 28 1 It is unclear who “ROLLINS” is; the Court will, however, assume that counsel for Plaintiff intended to refer to Plaintiff. 6 3:12-cv-1696-GPC-BLM 1 2 3 At all times herein mentioned, Defendants, and each of them, in doing the acts set forth herein, violated, among others, the following constitutional rights of Plaintiff: A. Plaintiff’s FOURTH AMENDMENT right to be free from unlawful detentions and seizures 4 5 6 Paragraph 32 of the proposed FAC merely adds the following subparagraph: B. Plaintiff’s FOURTEENTH AMENDMENT right to equal protection under the law. 7 8 Paragraph 34 of Plaintiff’s initial Complaint reads: 9 As a further and direct proximate result of said unlawful detention and illegal search and seizure and of the acts, conduct and omissions of Defendants, and each of them, Plaintiff, being an [sic] United States citizen, was subjected to deprivations of his rights, privileges and immunities secured by both the Constitutions of the United Sates and California sustaining violations of his civil rights and was hurt in his health, strength and activity, sustaining serious injury to his nervous system and person, all of which injuries have caused and continue to cause and will in the future cause Plaintiff great mental and nervous pain and suffering. 10 11 12 13 14 15 Paragraph 34 of the proposed FAC merely inserts “racial profiling” at the beginning 16 of the paragraph, so that it reads: 18 As a further and direct proximate result of said racial profiling, unlawful detention and illegal search and seizure and of the acts, conduct and omissions of Defendants . . . . 19 While a plaintiff need not provide “detailed factual allegations” to state a cause 20 of action, a plaintiff must plead sufficient facts that, if true, “raise a right to relief above 21 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). 22 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 23 to relief that is plausible on its face.’” Ashcroft v. Iqbal,129 S. Ct. 1937, 1949 (2009) 24 (quoting Twombly, 550 U.S. at 547). A claim is facially plausible when the factual 25 allegations permit “the court to draw the reasonable inference that the defendant is 26 liable for the misconduct alleged.” Id. In other words, “the non-conclusory ‘factual 27 content,’ and reasonable inferences from that content, must be plausibly suggestive of 28 a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 17 7 3:12-cv-1696-GPC-BLM 1 (9th Cir. 2009). 2 To state an equal protection claim for racial profiling, a plaintiff “must produce 3 evidence to permit a reasonable trier of fact to find by a preponderance of the evidence 4 that the decision . . . was racially motivated.” Bingham v. Manhattan Beach, 342 F.3d 5 939, 949 (9th Cir. 2003) (citations, quotation marks, & brackets omitted), overruled on 6 other grounds by Virginia v. Moore, 553 U.S. 164 (2008); see also Navarro v. Block, 7 72 F.3d 712, 716 (9th Cir. 1995) (stating that “a long line of Supreme Court cases make 8 clear that the Equal Protection Clause requires proof of discriminatory intent or 9 motive”). 10 Here, Plaintiff has not demonstrated good cause to extend the pleading- 11 amendment deadline and excusable neglect for having missed the deadline. Even if he 12 had, Plaintiff’s proposed FAC fails to plausibly state a claim for racial profiling in 13 violation of the Fourteenth Amendment’s Equal Protection Clause. While Plaintiff 14 references Palmer’s past history, Plaintiff does not incorporate that history into his 15 proposed FAC. And while he asserts it in his Motion, Plaintiff does not allege that he 16 is African-American in his proposed FAC. Plaintiff’s proposed FAC is therefore 17 devoid of any allegations demonstrating that any of the Defendants acted with a 18 discriminatory intent or motive as required to state an Equal Protection claim. CONCLUSION & ORDER 19 20 For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion 21 for Leave to File First Amended Complaint, (ECF No. 25), is DENIED. The Court, 22 however, denies Plaintiff’s Motion WITHOUT PREJUDICE. Plaintiff is advised that 23 any future motion for leave to amend his Complaint to add an Equal Protection claim 24 must not only address the aforementioned pleading deficiencies, but must also 25 demonstrate good cause for extending the pleading amendment deadline and excusable 26 /// 27 /// 28 /// 8 3:12-cv-1696-GPC-BLM 1 2 3 4 5 neglect for having missed the deadline. IT IS SO ORDERED. DATED: October 15, 2013 HON. GONZALO P. CURIEL United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 3:12-cv-1696-GPC-BLM
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