Watchman-Moore et al v. United States of America et al, No. 3:2017cv08187 - Document 70 (D. Ariz. 2018)
Court Description: ORDER denying Plaintiff's 51 Second Motion for Leave to Amend without prejudice. IT IS FURTHER ORDERED that within fourteen days of the date of this order, Plaintiffs may file a third motion for leave to amend. The motion for leave to amend and the proposed amended complaint must comply with the applicable federal and local rules of Civil Procedure and this Order. See order for complete details. Signed by Magistrate Judge Bridget S Bade on 8/28/18. (MSA)
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Watchman-Moore et al v. United States of America et al 1 Doc. 70 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Derrith Watchman-Moore, et al., Plaintiffs, 10 11 v. 12 United States of America, et al., 13 No. CV-17-08187-PCT-BSB ORDER Defendants. 14 Plaintiffs have filed a second motion for leave to file an amended complaint. 15 16 (Doc. 51.) Defendant United States of America opposes the motion. (Doc. 55.) 17 Plaintiffs have filed a reply in support of their motion. (Doc. 66.) The Court denies the 18 motion for the reasons below. 19 I. Background 20 On September 14, 2017, Plaintiffs commenced a wrongful death action under the 21 Federal Tort Claim Act (“FTCA”). (Doc. 1.) In the Complaint, Plaintiffs alleged that on 22 February 7, 2014, Chantal Moore (the decedent) was admitted to Fort Defiance Indian 23 Hospital with a diagnosis of pneumonia. (Doc. 1 at ¶ 31.) On February 12, 2014, the 24 decedent fell in the hospital bathroom, hit her head, and was found actively seizing on the 25 floor. (Id. at ¶ 37.) The decedent suffered another seizure later that day. (Id. at ¶ 38.) A 26 CT-scan showed hemorrhages, and the decedent showed signs of brain damage. (Id. at 27 ¶¶ 38-39.) 28 surgery, she died on February 15, 2014. The decedent was transferred to Flagstaff Medical Center where, after (Id. at ¶¶ 40, 42, 44.) After filing an Dockets.Justia.com 1 administrative claim, which was denied, Plaintiffs filed a Complaint in this Court. (Id. at 2 ¶¶ 10-11.) 3 government”), the Complaint named numerous other defendants. (Doc. 1; Doc. 34 at 2.) 4 The government filed a motion to partially dismiss the Complaint and the assigned 5 magistrate judge issued a report and recommendation on that motion.1 (Doc. 11.) In addition to the United States of America (“Defendant” or “the 6 On June 22, 2018, District Judge Stephen M. McNamee adopted the report and 7 recommendation. (Doc. 47.) Pursuant to that order, the Court concluded that Arizona 8 law applied to Plaintiffs’ wrongful death claim under the FTCA. (Id. at 3-4.) The Court 9 dismissed, without prejudice, Plaintiffs’ claims for negligent supervision, hiring, and 10 retention. (Doc. 47 at 3, 5.) The Court dismissed all of the named Defendants except for 11 the United States of America and dismissed the named Plaintiffs except for Derrith 12 Watchman-Moore and Henry K. Moore, as the surviving parents of the decedent. (Id. at 13 3-5.) 14 Complaint is the wrongful death claim under the FTCA brought by Plaintiffs Derrith 15 Watchman-Moore and Henry K. Moore, as decedent’s surviving parents, against 16 Defendant the United States of America. Therefore, after the June 22, 2018 Order, the only remaining claim in the 17 In the June 22, 2018 Order, the Court denied Plaintiffs’ motion for leave to amend 18 without prejudice to filing another motion to amend by July 31, 2018. (Id. at 5.) The 19 Court noted that Plaintiffs’ proposed amended pleading was an “extensive narrative” that 20 did not comply with Rule 8 of the Federal Rules of Civil Procedure and to which 21 Defendant could not file “a meaningful answer.” (Id.) The Court cautioned that a 22 proposed amended pleading must comply with Rule 8 and cure any deficiencies noted in 23 the Report and Recommendation and its order. (Id. at 4-5.) 24 /// 25 /// 26 1 27 28 A report and recommendation was issued because, at that time, not all of the named defendants had been served or consented to magistrate judge jurisdiction. (Doc. 34 at 1 n.1 (citing Williams v King, ___ F.3d ___, 2017 WL 5180205, at *3 (9th Cir. Nov. 9, 2017) (holding that the absence of consent from unserved defendants deprived the magistrate judge of jurisdiction to dismiss the complaint)).) The assigned magistrate judge now has full consent of all parties. (Doc. 48); see 28 U.S.C. § 636(c). -2- 1 II. Motion for Leave to File Amended Complaint 2 On July 31, 2018, Plaintiffs filed a timely motion to amend, a proposed first 3 amended complaint, and a supporting memorandum. (Docs. 51, 51-1, 51-2.) In their 4 motion and memorandum, Plaintiffs state that they seek leave to amend to add: (1) a 5 claim under Arizona’s survival statute, Ariz. Rev. Stat. § 14-3110 brought by Plaintiff 6 Derrith Watchman-Moore, in her role as personal representative of decedent’s estate 7 (Doc. 51 at 4; 51-2 at 3); and (2) a claim of negligent supervision and training. (Doc. 51 8 at 5; Doc. 51-2 at 4.) Defendant opposes the inclusion of certain allegations in the 9 proposed pleading. (Doc. 55 at 2-10.) Defendant also argues that the proposed amended 10 complaint fails to comply with Rule 8 or the June 22, 2018 Order. (Id. at 10-11.) 11 A. 12 A complaint must include “a short and plain statement of the grounds for the 13 court’s jurisdiction . . . .” Fed. R. Civ. P. 8(a)(1). A complaint must also include “a 14 demand for the relief sought . . . .” Fed. R. Civ. P. 8(a)(3). Finally, a complaint must 15 contain “a short and plain statement of the claim showing that the pleader is entitled to 16 relief.” Fed. R. Civ. P. 8(a)(2). “Each allegation must be simple, concise, and direct.” 17 Fed. R. Civ. P. 8(d)(1). When a complaint includes the factual elements of a cause of 18 action, but those facts are not organized into a “short and plain statement of the claim,” it 19 may be dismissed for failure to satisfy Rule 8(a). See Sparling v. Hoffman Constr. Co., 20 864 F.2d 635, 640 (9th Cir. 1988). Pleading Requirements 21 Additionally, a party’s claim must be stated “in numbered paragraphs, each 22 limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b); see 23 Bautista v. Los Angeles Cty., 216 F.3d 837, 840-41 (9th Cir. 2000). Failure to set forth 24 claims in such a manner places the burden “on the court to decipher which facts support 25 which claims, as well as to determine whether a plaintiff is entitled to the relief sought.” 26 Haynes v. Anderson & Strudwick, Inc., 508 F. Supp. 1303, 1306 n.1 (E.D. Va. 1981). 27 Whether to enforce Rule 10’s requirements is discretionary, but it is appropriate to do so 28 when it is necessary to facilitate a clear presentation of the claims. See Benoit v. Ocwen -3- 1 Fin. Corp., Inc., 960 F. Supp. 287 (S.D. Fla. 1997) (requiring compliance with Rule 10 2 where allegations were confusing and conclusory, claims were commingled, and it was 3 impossible to determine nature of claims). 4 B. 5 The proposed first amended complaint (FAC) alleges that the action arises under 6 the FTCA. (Doc. 51-1 at 3.) Under the FTCA, Congress authorized suits against the 7 United States for money damages “for injury or loss of property, or personal injury or 8 death caused by the negligent or wrongful act or omission of any employee of the 9 Government while acting within the scope of his office or employment, under 10 circumstances where the United States, if a private person, would be liable . . . .” 28 11 U.S.C. § 1346(b)(1). 12 claims. Id. The FTCA’s waiver of immunity permits causes of action against the United 13 States arising out of certain torts committed by federal employees acting within the scope 14 of their employment. See Dolan v. U.S. Postal Service, 546 U.S. 481, 483 (2006). 15 “[T]he extent of the United States’ liability under the FTCA is generally determined by 16 reference to state law.” Molzof v. United States, 502 U.S. 301, 305 (1992); Erlin v. 17 United States, 364 F.3d 1127, 1132 (9th Cir. 2004) (stating that underlying cause of 18 action in an FTCA suit comes from state law); Schwarder v. United States, 974 F.2d 19 1118, 1127 (9th Cir. 1992) (stating that “state law governs the scope of the United States’ 20 substantive tort liability . . . .”) (emphasis in original). The Proposed Pleading does not Comply with Rule 10 The Act gives federal courts exclusive jurisdiction over such 21 Further, under the statutory procedure set forth in 28 U.S.C. § 2675(a), a “tort 22 claimant may not commence proceedings in court against the United States without first 23 filing [his] claim with an appropriate federal agency and either receiving a conclusive 24 denial of the claim from the agency or waiting for six months to elapse without a final 25 disposition of the claim being made.” Jerves v. United States, 966 F.2d 517, 519 (9th 26 Cir. 1992); see Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000) (a claimant 27 under the FTCA must comply with § 2675(a) before a district court can exert subject 28 matter jurisdiction over the claim). The “‘claim requirement of section 2675 is -4- 1 jurisdictional in nature and may not be waived.’” Jerves, 966 F.2d at 519 (quoting Burns 2 v. United States, 764 F.2d 722, 724 (9th Cir. 1985)). 3 In the motion for leave to amend, Plaintiffs assert that the proposed pleading adds 4 a claim under Arizona’s survival statue, Ariz. Rev. Stat. § 14-3110, and adds allegations 5 to support a “negligent supervision and training claim.” (Doc. 51 at 4-5, Doc. 51-2 at 3- 6 4.) Although the Court previously denied Plaintiffs leave to amend based, in part, on the 7 form of the filing, (Doc. 47 at 4), Plaintiffs have again submitted a proposed FAC that is 8 “an extensive narrative.” (Id.; Doc. 51-1 at 1-52.) The caption of the proposed amending 9 pleading identifies the FAC as including claims for “Wrongful Death, Survivor, Federal 10 Tort Claim.” (Id. at 1.) The proposed FAC includes sections entitled Introduction (id. at 11 2-3), Parties, Jurisdiction, and Venue (id. at 3-9), General Allegations (id. at 9-14), 12 Factual Allegations followed by another heading entitled Supervisory Liability (id. at 14- 13 50), and Demand against Defendants. (Id. at 50-52). 14 The proposed FAC fails to clearly identify Plaintiffs’ claims—the underlying state 15 law causes of action—and does not set forth those claims in separate counts. 16 Bautista, 216 F.3d at 840-41; see Watson v. United States, 2017 WL 2904263, at *2 17 (identifying the FTCA as a “vehicle through which [a plaintiff] brings [tort] claims 18 against the United States.”). Plaintiffs’ failure to clearly identify their claims has caused 19 confusion about what claims they are asserting. For example, Plaintiffs’ motion to 20 amend refers to a “negligent supervision and training claim.” (Doc. 51 at 5.) However, 21 the proposed FAC does not identify such a claim as a separate count. (Doc. 52-1 at 1- 22 52.) In its response to the motion to amend, Defendant refers to a claim of negligence 23 based on a “failure to adopt, revise, or implement adequate hospital policy on fall 24 prevention.” (Doc. 55 at 2.) However, because the proposed FAC does not clearly 25 identify any particular claim, it is unclear whether the proposed FAC asserts such a 26 negligence claim. Additionally, Defendant states that the only claim Plaintiffs properly 27 exhausted is a medical malpractice claim (Doc. 55 at 6), but the proposed FAC does not 28 -5- See 1 clearly identify that claim in the body of the FAC and does not include that claim in a 2 separate count. See Bautista, 216 F.3d at 840-41. 3 Plaintiffs’ failure to identify the state law causes of action and failure to set forth 4 their claims in separate numbered paragraphs has shifted the burden “on the court to 5 decipher which facts support which claims, as well as to determine whether [Plaintiffs 6 are] entitled to the relief sought.” Haynes, 508 F. Supp. at 1306 n.1. The manner in 7 which the proposed FAC is drafted does not comply with Rule 10 or the Court’s June 22, 8 2018 order and prevents the Court, and Defendant, from determining what claims 9 Plaintiffs are asserting. Additionally, Plaintiffs’ failure to clearly identify each of their 10 claims prevents the Court from determining whether they have satisfied the exhaustion 11 requirement as to each claim. See 28 U.S.C. § 2675(a); Jerves, 966 F.2d at (stating that 12 because the requirement of an administrative claim is jurisdictional, it “must be strictly 13 adhered to.”). For these reasons, the Court denies the motion for leave to amend. 14 However, the Court grants Plaintiffs a final opportunity to file a motion for leave to 15 amend and to submit a proposed FAC that fully complies with the federal pleading 16 requirements, including the requirements in Rule 10. If Plaintiffs wish to file an amended 17 complaint, they shall set forth each claim as a separate count by clearly numbering and 18 distinguishing each claim, including the underlying factual allegations for each claim. 19 Accordingly, 20 IT IS ORDERED that Plaintiffs’ second motion for leave to amend (Doc. 51) is 21 DENIED without prejudice. 22 IT IS FURTHER ORDERED that within fourteen days of the date of this order, 23 Plaintiffs may file a third motion for leave to amend. The motion for leave to amend and 24 the proposed amended complaint must comply with the applicable federal and local rules 25 of Civil Procedure and this Order. 26 Dated this 28th day of August, 2018. 27 28 -6-
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