Atwell v. Surprise, City of et al, No. 2:2009cv01924 - Document 38 (D. Ariz. 2010)

Court Description: ORDER granting 33 Defendant's Motion for Judgment on the pleadings and denying 35 Plaintiff's request to amend the pleadings. The Clerk shall terminate this action. Signed by Judge David G Campbell on 4/7/10.(LSP)
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Atwell v. Surprise, City of et al 1 Doc. 38 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jeremy Atwell, an individual, 10 Plaintiff, 11 v. 12 City of Surprise, a political subdivision of the State of Arizona, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) No. CV 09-1924 PHX-DGC ORDER 15 16 Defendant City of Surprise has filed a motion for judgment on the pleadings pursuant 17 to Federal Rule of Civil Procedure 12(c). Dkt. #33. Plaintiff opposes the motion and seeks 18 leave to amend his first amended complaint. Dkt. #35. For reasons that follow, the Court 19 will grant Defendant’s motion and deny Plaintiff’s request for leave to amend. 20 I. Background. 21 Plaintiff was a police officer with the City of Surprise Police Department (“the Police 22 Department”). Dkt. #12, ¶ 8. On April 24, 2008, an El Mirage police officer contacted the 23 Police Department to express concerns regarding Plaintiff’s conduct during a traffic stop on 24 March 16, 2007. Id. at ¶ 10. Based on the officer’s concerns, the Police Department 25 conducted an internal investigation. Id. 26 On August 1, 2008, Plaintiff was involved in an accident at work that required him 27 to miss work until February 2, 2009. Id. at ¶ 11. On August 5, 2008, Plaintiff received the 28 results of the Police Department’s internal investigation, in which the Assistant Police Chief 1 recommended that Plaintiff be terminated. Id. at ¶ 12. This recommendation was later 2 reduced to a 40-hour suspension, requiring Plaintiff to report back to work on December 24, 3 2008. Id. at ¶ 14. Plaintiff appealed the decision, but it was upheld. Id. at ¶15. 4 On January 9, 2009, Plaintiff was reassigned to a clerical position at the front desk. 5 Id. at ¶ 19. On January 19, 2009, Plaintiff called in sick for the week because he was 6 suffering anxiety attacks. Id. at ¶ 21-23. On January 20, 2009, the human resources director 7 notified Plaintiff that his absence, which the Police Department believed to be un-excused, 8 would result in his termination if he did not return to work by January 26, 2009. Id. at ¶ 26- 9 27. Plaintiff believed that his absence was excused and had attempted to file the correct 10 paperwork with the Police Department to ensure that he would not be terminated. On 11 January 27, 2009, the Police Department terminated Plaintiff. Id. at ¶ 30. 12 Based on his reassignment to a clerical position and his termination, Plaintiff filed a 13 charge of discrimination with the Equal Employment Opportunity Commission and received 14 a Right to Sue letter on June 18, 2009. He then filed the present action against the City. 15 Dkt. #12. He claims that the City discriminated against him by requiring him to return to 16 work when he was not able to do so because of his illness. He also claims that the City 17 retaliated against him by reassigning him to a desk position and terminating his employment. 18 II. Rule 12(c) Motion. 19 Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed . . . any 20 party may move for judgment on the pleadings.” A motion for judgment on the pleadings 21 under Rule 12(c) “is properly granted when, taking all the allegations in the non-moving 22 party’s pleadings as true, the moving party is entitled to judgment as a matter of law.” 23 Fajardo v. County of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1998). In other words, 24 dismissal pursuant to Rule 12(c) is inappropriate if the facts as pled would entitle Plaintiff 25 to a remedy. Merchants Home Delivery Serv., Inc. v. Hall & Co., 50 F.3d 1486, 1488 (9th 26 Cir. 1995). 27 Both of Plaintiff’s claims against the City are brought under Title II of the Americans 28 with Disabilities Act of 1990, 42 U.S.C. § 12131 et seq. (“ADA”). Under Title II, “no -2- 1 qualified individual with a disability shall, by reason of such disability, be excluded from 2 participation in or be denied the benefits of the services, programs, or activities of a public 3 entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The Ninth 4 Circuit has held that Title II applies to “outputs” of a public entity, which are public services 5 provided by that entity, rather than to “inputs” of a public entity, such as employment. 6 Zimmerman v. State of Oregon Dep’t of Justice, 170 F.3d 1169, 1173 (9th Cir. 1999). 7 “Congress unambiguously expressed its intent for Title II not to apply to employment” 8 because “employment by a public entity is not commonly thought of as a ‘service, program, 9 or activity of a public entity.’” Id. at 1173-74. 10 The City argues that Plaintiff has failed to state a claim because “none of Plaintiff’s 11 factual allegations relate to the City of Surprise’s provision of public services,” but instead 12 “relate to his former employment with the City of Surprise.” Dkt. #33 at 6. The City argues 13 that Zimmerman makes clear that Plaintiff cannot bring a claim under Title II for 14 discrimination based on employment because employment is not a “service, program, or 15 activity of a public entity.” 170 F.3d at 1174. The Court agrees. 16 Plaintiff makes two claims under Title II: (1) “[i]n requiring Plaintiff to report for 17 work before he was determined to be ‘fit for duty’ by his physician, the Defendant and its 18 employees prevented Plaintiff from access to services, programs, and rights afforded to other 19 employees that were unavailable to Plaintiff”; and (2) “[i]n requiring Plaintiff to report for 20 work before he was determined to be ‘fit for duty’ by his physician, Defendant and its 21 employees retaliated against Plaintiff by terminating him because of his medical condition 22 and his alleged failure to provide documented proof from his physician that he was unable 23 to return to work despite the fact that [the Police Department] was aware that Plaintiff’s 24 doctor had not released him to return to work.” Dkt. #12 at 8-9. Plaintiff’s allegations of 25 discrimination and retaliation all relate to his employment as a police officer. These are not 26 “public services” under Title II of the ADA. See Zimmerman, 170 F.3d at 1174. 27 In his response, Plaintiff agrees with the City’s reading of Zimmerman “that Title II 28 may not apply to the facts in this case,” but argues that the Court should deny the motion for -3- 1 judgment on the pleadings because the City knew that “Plaintiff’s claim was based on the 2 entirety of the ADA and not limited to Title II.” Dkt. #35 at 10. The claims asserted in 3 Plaintiff’s amended complaint, however, are based on Title II. See Dkt. #12 at 7-9. Plaintiff 4 provides no authority for the proposition that a Court should deny a motion for judgment on 5 the pleadings because the defendant knew the plaintiff had intended to state other claims, but 6 failed to do so. 7 III. Plaintiff’s Request for Leave to Amend. 8 Plaintiff asks the Court to afford him an opportunity to “amend his Complaint to 9 correct the citation to the incorrect section of the ADA.” Id. The City objects. Dkt. #37. 10 It notes that this Court’s Rule 16 Case Management Order set a deadline of February 5, 2010 11 for amending pleadings, and argues that Plaintiff has failed to show “good cause” for the 12 modification. 13 Generally, a court should “freely give leave [to amend] when justice so requires.” 14 Fed. R. Civ. P. 15(a). After the Court’s deadline for a party to amend pleadings has passed, 15 however, Rule 15 no longer controls. Rule 16 controls. Johnson v. Mammoth Recreations, 16 Inc., 975 F.2d 604, 607-08 (9th Cir. 1992); Farina v. Compuware Corp., 256 F. Supp. 2d 17 1033, 1061 (D. Ariz. 2003). Under Rule 16, a party must show “good cause” to extend the 18 deadline for amending pleadings. Johnson, 975 F.2d at 607-08; Fed. R. Civ. P. 16. “Unlike 19 Rule 15(a)’s liberal amendment policy which focuses on the bad faith of the party seeking 20 to interpose an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good 21 cause’ standard primarily considers the diligence of the party seeking the amendment.” 22 Johnson, 975 F.2d at 609; see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th 23 Cir. 2000). “Good cause” exists when a deadline “cannot reasonably be met despite the 24 diligence of the party seeking the extension.” Fed. R. Civ. P. 16 advisory committee’s note. 25 Thus, if the party seeking to amend “was not diligent, the inquiry should end.” Johnson, 975 26 F.2d at 609. “[C]arelessness is not compatible with a finding of diligence and offers no 27 reason for a grant of relief.” Id. 28 Plaintiff filed his original complaint on September 16, 2009. Dkt. #1. It asserted -4- 1 claims for violation of “Title VII of the Americans with Disabilities Act.” Id. at 5. On 2 November 13, 2009, after Defendants had filed a motion to dismiss (Dkt. #7), Plaintiff filed 3 an amended complaint. Dkt. #12. Plaintiff’s amended complaint asserted claims under Title 4 II of the ADA. Id. More than two months later, in preparation for the Rule 16 case 5 management conference, Plaintiff and Defendant jointly proposed that the deadline for 6 amending pleadings be fixed at February 5, 2010. Dkt. #28 at 5, 7. The Court adopted this 7 proposal in its Case Management Order. Dkt. #30. The Case Management Order also 8 provided this caution: 10 The Deadlines Are Real. The parties are advised that the Court intends to enforce the deadlines set forth in this Order, and should plan their litigation activities accordingly. 11 Dkt. #30, ¶ 9. The Court also expressly advised the parties at the Rule 16 conference that it 12 would not be inclined to extend the deadlines. See Court’s Livenote Transcript, 1/27/10. 9 13 Plaintiff now seeks leave to amend his amended complaint after the deadline he 14 proposed has passed. Plaintiff has failed, however, to show the “good cause” required by 15 Rule 16. Plaintiff has not shown that he was unable through reasonable diligence to amend 16 his complaint to assert claims under provisions other than Title II of the ADA. To the 17 contrary, Plaintiff demonstrated his ability to amend his complaint by doing so in response 18 to Defendants’ first motion to dismiss. Plaintiff does not explain why he could not have made 19 the amendment he now seeks to make before the Court’s deadline. Although Plaintiff argues 20 that his amended complaint cited Title II of the ADA by mistake, the Ninth Circuit has noted 21 that “carelessness is not compatible with a finding of diligence and offers no reason for a grant 22 of relief.” Johnson, 975 F.2d at 609. 23 “In these days of heavy caseloads, trial courts . . . set schedules and establish deadlines 24 to foster the efficient treatment and resolution of cases.” Wong v. Regents of the Univ. of Cal., 25 410 F.3d 1052, 1060 (9th Cir. 2005). “Parties must understand that they will pay a price for 26 failure to comply strictly with scheduling and other orders[.]” Id. 27 IT IS ORDERED: 28 1. Defendant’s motion for judgment on the pleadings (Dkt. #33) is granted. -5- 1 2. Plaintiff’s request to amend the pleadings (Dkt. #35) is denied. 2 3. The Clerk of Court shall terminate this action. 3 DATED this 7th day of April, 2010. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-