Anglin v. Kennard

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 John Anglin, ) 9 ) Plaintiff, ) 10 ) No. CIV 24-304-TUC-CKJ vs. ) 11 ) ORDER Susan Kennard, et al., ) 12 ) Defendants. ) 13 ) 14 Pending before the Court is the Motion for Leave to File Second Amended 15 Complaint (Doc. 37) filed by Plaintiff John Anglin ("Anglin"). Defendants Susan Kennard 16 ("Kennard") and Alex Demyan ("Demyan") have filed a Notice stating they have no 17 objection to Anglin's request (Doc. 38). Non-party Centene Corporation ("Centene") has 18 filed a response (Doc. 40) and Anglin has filed a reply (Doc. 42). 19 20 I. Procedural Background 21 On June 18, 2024, Anglin filed the original Complaint in this action against Kennard 22 and Demyan. This Court screened the Complaint and determined Anglin had adequately 23 alleged First Amendment retaliation claims against Kennard and Demyan. On November 24 25, 2024, Anglin filed a First Amended Complaint ("FAC"), which added Centene as a 25 defendant. Anglin alleged First Amendment retaliation claims under 42 U.S.C. § 1983 26 against Centene, Kennard, and Demyan. Anglin alleged his termination of employment was 27 a result of his protected speech on a matter of public concern. 28 In an April 28, 2025, ruling on a Motion to Dismiss (Doc. 31), the Court dismissed 1 Centene from this action. The Court's Order discussed the balancing test set forth in 2 Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563 (1968). 3 The Court determined Anglin was speaking on matters of a public concern and Anglin 4 sufficiently alleged facts and raised reasonable inferences that Centene acted under color 5 of state law, but failed to adequately allege liability under Monell v. Dep’t. of Soc. Servs., 6 436 U.S. 658, 690 (2000). 7 Anglin has filed a Motion for Leave to File a Second Amended Complaint ("SAC") 8 ("Motion") (Doc. 37) in which he proposes to add Karin Uhlich ("Uhlich"), an individual 9 employee of Centene, as a Defendant. Uhlich is a "Centene employee who was previously 10 identified in [Anglin's] First Amended Complaint as a supervisory employee who made the 11 decision to terminate [Anglin's] employment." Motion (Doc. 37, p. 3). Centene has filed 12 a response (Doc. 40) and Anglin has filed a reply (Doc. ). 13 14 II. Opposition to Motion to Amend 15 Anglin argues non-party Centene cannot object to the Motion "absent a request to 16 submit an amicus curiae brief, a request to intervene, or eligibility to file papers pursuant 17 to Rule 14 (third party practice)." Reply (Doc. 42, p. 2). Indeed, the U.S. Const., Art. III's 18 core principle is that each party "must assert his own legal rights and interests, and cannot 19 rest his claim to relief on the legal rights or interests of third parties." Magadia v. Wal-Mart 20 Assocs., Inc., 999 F.3d 668, 676–77 (9th Cir. 2021), quoting Warth v. Seldin, 422 U.S. 490, 21 499 (1975). 22 Another court in this district has found standing to oppose a motion for leave to 23 amend is not clear where the motion does not "purport to raise any new claims against 24 [them] and simply seeks to add a new co-defendant" because 'parties unaffected by the 25 proposed amendment do not have standing to assert claims of futility on behalf of proposed 26 defendants.'" Murphy v. Fisher, No. CV-19-04526- PHX-DWL, 2019 WL 5388039, at *2 27 (D. Ariz. Oct. 22, 2019), quoting Castellani v. City of Atlantic City, No. CV 13-5848 28 1 (RMB/AMD), 2015 WL 12829622, at *2 (D.N.J. Aug. 4, 2015); see also Doe v. ESA P 2 Portfolio LLC, No. 3:23-CV-06038, 2024 WL 943468, at *2 (W.D. Wash. Mar. 5, 2024); 3 Murphy v. Fisher, No. CV-19-04526-PHX-DWL, 2019 WL 5388039, at *2 (D. Ariz. Oct. 4 22, 2019). Other district courts have similarly concluded. See, e.g., O'Gorman v. Mercer 5 Kitchen L.L.C., No. 20-CV-1404 (LJL), 2021 WL 602987, at *2 (S.D.N.Y. Feb. 16, 2021); 6 Custom Pak Brokerage, LLC v. Dandrea Produce, Inc., No. CIV. 13-5592 NLH/AMD, 7 2014 WL 988829, at *2 (D.N.J. Feb. 27, 2014). Moreover, Centene has not taken any 8 action to appear properly before the Court to object to the proposed amendment. See e.g. 9 Fed.R.Civ.P. 24 (intervention); Jamul Action Comm. v. Stevens, No. 2:13-CV-01920-KJM, 10 2014 WL 3853148, at *5 (E.D. Cal. Aug. 5, 2014) (non-party sought leave to file an amicus 11 brief in support of a motion to dismiss). 12 The Court finds non-party Centene does not have standing to oppose the Motion. See 13 LRCiv 7.2(c) ("The opposing party shall . . . file a responsive memorandum."), emphasis 14 added. The Court will not consider the response. The Court, therefore, will determine 15 whether the filing of the Motion is appropriate in light of applicable standards. See 16 Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) ("A simple denial 17 of leave to amend without any explanation by the district court is subject to reversal."). 18 19 III. "Consent" to Amendment of Complaint 20 Where a responsive pleading has been filed, "a party may amend the party's pleading 21 only by leave of court or by written consent of the adverse party, and leave shall be freely 22 given when justice so requires." Fed.R.Civ.P. 15(a)(2). Defendants Kennard and Demyan 23 have submitted a filing indicating they do not object to the SAC. The applicable local rule 24 states, inter alia, that if a party "does not serve and file the required answering memoranda 25 . . . such non-compliance may be deemed a consent to the . . . granting of the motion and 26 the Court may dispose of the motion summarily. LRCiv 7.2(i). Here, Kennard and Demyan 27 filed an answering memorandum in which they stated they did not object to the Motion. 28 1 However, they do not state they "consent" to the Motion. The Court finds, in these 2 circumstances, it cannot be said Kennard and Demyan have provided "written consent" to 3 the filing of the SAC. 4 5 IV. Amendment of Complaint 6 "Five factors are taken into account to assess the propriety of a motion for leave to 7 amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and 8 whether the plaintiff has previously amended the complaint." Desertrain v. City of Los 9 Angeles, 754 F.3d 1147, 1154 (2014), quoting Johnson v. Buckley, 356 F.3d 1067, 1077 10 (9th Cir. 2004). Not all of these factors merit equal weight; rather, "it is the consideration 11 of prejudice to the opposing party that carries the greatest weight." Eminence Cap., LLC 12 v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Further, a district court does not 13 "abuse its discretion in denying a motion to amend a complaint . . . when the movant 14 present(s) no new facts but only 'new theories' and 'provid[es] no satisfactory explanation 15 for his failure to fully develop his contentions originally.'" Nunes v. Ashcroft, 375 F.3d 805, 16 808 (9th Cir. 2004), quotation omitted 17 Here, Anglin seeks to add an additional party. The SAC also includes additional 18 allegations, but does not seek to add any additional claims. 19 20 A. Bad Faith 21 The Court finds there is no basis to conclude Anglin is acting in bad faith in seeking 22 to file his SAC. The Court finds this factor is neutral. 23 24 B. Undue Delay 25 The Ninth Circuit has stated, "Absent prejudice, or a strong showing of any of the 26 remaining [Foman v. Davis, 371 U.S. 178 (1962)] factors, there exists a presumption under 27 Rule 15(a) in favor of granting leave to amend." Eminence Cap., 316 F.3d at 1052, citation 28 1 omitted. "[D]elay, by itself, is insufficient to justify denial of leave to amend[,]" DCD 2 Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987), especially "where there is 3 a lack of prejudice to the opposing party and the amended complaint is obviously not 4 frivolous or made as a dilatory maneuver in bad faith . . . " Hurn v. Retirement Fund Trust 5 of Plumbing, Heating & Piping Indus. of S. Ca., 648 F.2d 1252, 1254 (9th Cir.1981). 6 However, the Ninth Circuit has also given greater weight to the undue delay factor where 7 the facts and theories sought to be added were known to moving party early in the litigation. 8 Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir.1994). In evaluating undue delay, the Court 9 also considers whether Anglin "knew or should have known the facts and theories raised by 10 the amendment in the original pleading." Bus. Warrior Corp. v. Li, No. 11 8:22-CV-02144-DOC-ADSX, 2024 WL 3005927, at *4 (C.D. Cal. May 21, 2024), quoting 12 Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990); see also Segal v. Rogue 13 Pictures, 544 F. App'x 769, 770 (9th Cir. 2013). The Court also considers whether the delay 14 "prejudices the nonmoving party or imposes unwarranted burdens on the court." Davis v. 15 Powell, 901 F. Supp. 2d 1196, 1212 (S.D. Cal. 2012). 16 Delays of one year or less have been determined to be both undue and not undue, 17 depending on the circumstances (e.g, reason for delay, status of proceedings). See e.g. 18 Jackson v. Bank of Hawaii, 902 F.2d 1385 (9th Cir. 1990) (delay of about one year, without 19 a good reason and after discovery was closed, was undue); Lockheed Martin Corp. v. 20 Network Solutions, Inc., 194 F.3d 980, 986 (C.D. Cal. 1999) (delay of about eight months, 21 sought to clarify claims and discovery ongoing). Additionally, the Ninth Circuit has 22 approved an amended complaint where the delay was tied to identifying the proper parties 23 and not bad faith. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186–87 (9th Cir. 1987). 24 Here, the delay involves a potential additional defendant and there is no indication 25 of bad faith. Moreover, Kennard and Demyan would not be prejudiced nor would an 26 unwarranted burden be placed on the Court (the parties agreed to continue the Rule 16 Case 27 Management Conference pending resolution of this motion; no trial date is set). Moreover, 28 1 while Uhlich was known to Anglin and not included in either the original or FAC, she is 2 related to the claims and was identified in the original complaint and FAC as a relevant 3 person with, at a minimum, important knowledge of the claims. See e.g. Synthes, Inc. v. 4 Marotta, 281 F.R.D. 217, 228 (E.D. Pa. 2012). 5 In these circumstances, the Court finds this factor slightly weighs in favor of denying 6 the request to amend. See e.g., Wizards of the Coast LLC v. Cryptozoic Ent. LLC, 309 7 F.R.D. 645, 652 (W.D. Wash. 2015) ("Whether there has been ‘undue delay’ should be 8 considered in the context of (1) the length of the delay measured from the time the moving 9 party obtained relevant facts; (2) whether discovery has closed; and (3) proximity to the trial 10 date."). 11 12 C. Prejudice to the Opposing Party 13 The Court finds Kennard and Demyan will not be prejudiced by the proposed 14 amendment. It is this consideration that carries the greatest weight. Eminence Cap., 316 15 F.3d at 1052. The Court considers that "generally a party will not be deemed prejudiced by 16 an amended pleading if the amendment relates to the same conduct, transaction, or 17 occurrence alleged in the original pleading, or if the opposing party is otherwise aware of 18 the facts contained in the amended pleading." 61A Am. Jur. 2d Pleading § 724, citations 19 omitted. In this case, the proposed amendment is related to the parties and the conduct 20 alleged in the FAC. 21 Further, prejudice may be found where the "parties have engaged in voluminous and 22 protracted discovery" prior to amendment, or where "[e]xpense, delay, and wear and tear on 23 individuals and companies" is shown. Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir.1994), 24 overruled on other grounds; see also Jackson v. Bank of Haw., 902 F.2d 1385, 1387–88 (9th 25 Cir.1990) (prejudice exists where permitting plaintiff to file an amended complaint will lead 26 to "the nullification of prior discovery," increase "the burden of necessary future discovery," 27 and the "relitigation of a [previously-decided] suit"); 61B Am. Jur. 2d Pleading § 724 28 1 (prejudice in this context means "an undue difficulty or serious disadvantage in prosecuting 2 or defending the action"). 3 Granting Anglin's request may result in limited additional discovery. However, 4 Uhlich was identified from the beginning as a person, at a minimum, with relevant 5 information. In other words, to the extent Defendants would suffer any prejudice from the 6 amendment, it is minimal. This factor weighs in favor of permitting the amendment. 7 8 D. Futility of Amendment 9 "[L]eave to amend should be denied as futile 'only if no set of facts can be proved 10 under the amendment to the pleadings that would constitute a valid and sufficient claim or 11 defense[.]'" Barahona v. Union Pac. R.R. Co., 881 F.3d 1122, 1134 (9th Cir. 2018), citation 12 omitted; see also Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) ("Futility of 13 amendment can, by itself, justify the denial of a motion for leave to amend."). Here, the 14 Court has determined Anglin has stated sufficient facts to state viable claims. The Court 15 must decide if those claims have adequately been stated against proposed new Defendant 16 Uhlich. 17 As the Court has discussed in prior Order, it takes as true all allegations of material 18 fact and construes them in the light most favorable to Anglin, Cervantes v. United States, 19 330 F.3d 1186, 1187 (9th Cir. 2003), but does not accept as true unreasonable inferences 20 or conclusory legal allegations cast in the form of factual allegations, Western Mining 21 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Additionally, as the Court has 22 previously discussed the requirements for stating a claim upon which relief can be granted, 23 the Court will only address the issues pertinent to determining if Anglin's proposed 24 amendment is futile. 25 Initially, the Court recognizes Anglin alleges an affirmative link between Anglin's 26 discipline and termination and the conduct of Uhlich. Rizzo v. Goode, 423 U.S. 362, 371- 27 72, 377 (1976). Further, the SAC alleges or raises a reasonable inference Uhlich personally 28 1 participated in the alleged constitutional deprivation of Anglin, King v. Atiyeh, 814 F.2d 2 565, 568 (9th Cir. 1987). See SAC (Doc. 37-1, p. 11) (Uhlich is alleged to have been 3 provided a copy of Anglin's public comment by Kennard and have terminated Anglin's 4 employment). 5 The Court has determined "a nexus existed between [Arizona Health Care Cost 6 Containment System ("AHCCCS")] and Centene as to employment matters" and "'indices 7 of the Government's encouragement, endorsement, and participation' to promote particular 8 private conduct [citation omitted, . . . were] present in this case, at least sufficiently to state 9 a claim upon which relief may be granted. April 28, 2025, Order (Doc. 36, pp. 12, 15), 10 emphasis in original. In other words, the Court found Anglin had sufficiently alleged 11 Centene was a state actor. 12 A defendant acts under color of law if he 'exercises power possessed by virtue of 13 state law and made possible only because the wrongdoer is clothed with the authority of 14 state law.'" Although typically only public agencies and officers act "under color of state 15 law," private individuals may be liable under § 1983 in certain circumstances. 16 Perez-Morciglio v. Las Vegas Metro. Police Dep't, 820 F. Supp. 2d 1100, 1106 (D. Nev. 17 2011), citations omitted. Courts "start with the presumption that private conduct does not 18 constitute governmental action." Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 19 835 (9th Cir. 1999). 20 Uhlich was employed by Centene, a private entity, and served as the Director of 21 Health Services for its Arizona Complete Health during the events alleged in the SAC. She 22 had the authority to discipline, re-assign, and terminate certain subordinate employees, 23 including Anglin. Shortly after Anglin posted the September 18, 2023, comments which are 24 the subject of this suit, AHCCCS's Kennard is alleged to have expressed to Anglin's direct 25 supervisor at Centene her displeasure with Anglin's decision to state his opinion in a public 26 comment and implicitly suggested Anglin's decision amounted to unprofessional conduct. 27 Anglin alleges during the few days following the posting, Kennard expressed a belief, to 28 1 which Demyan concurred, that it was appropriate to instruct and/or encourage Centene to 2 discipline Anglin. Shortly thereafter, Anglin alleges Uhlich stripped Anglin of certain 3 responsibilities and Anglin was informed the reductions in responsibilities were as a result 4 of his public comment. Anglin's SAC further alleges: 5 69. Upon information and belief, Defendant Kennard had provided [Anglin's direct supervisor] and [Defendant Uhlich] with a copy of Plaintiff's public comment. 6 70. On September 25, 2023, [Defendant Uhlich] informed Plaintiff that he was 7 terminated effective immediately. 8 71. Neither [Anglin's direct supervisor] nor [Defendant Uhlich] provided Plaintiff with a nonretaliatory reason for his termination. 9 SAC (Doc. 37-1, p. 11). 10 The SAC's allegations set forth "factual content that allows the [C]ourt to draw the 11 reasonable inference[,]" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), that a nexus existed 12 between not only Centene and AHCCCS, but also Uhlich and AHCCCS, as to employment 13 matters. The allegations indicate a temporal proximity between Anglin's public comments, 14 an AHCCCS employee's expression of displeasure, Kennard providing a copy of Anglin's 15 public comment to his direct supervisor and Uhlich (Centene employees) and the 16 termination of Anglin by Centene employee Uhlich. While additional facts developed 17 during discovery may ultimately show an insufficient link, the Court finds Anglin has 18 sufficiently alleged a nexus to state a claim upon which relief may be granted. See e.g. J.K. 19 By & Through R.K. v. Dillenberg, 836 F. Supp. 694, 698 (D. Ariz. 1993) (private provider 20 was a state actor when that private entity had been assigned the entire responsibility for 21 mandated health care duties). 22 Further, Anglin alleges government employee Kennard initiated communications with 23 Anglin's direct supervisor with Centene within hours after Anglin posted his comments. 24 Further, Kennard is alleged to have expressed her displeasure with Anglin's decision to 25 express his opinion in a public comment and suggested that decision constituted 26 unprofessional conduct. Shortly thereafter, Anglin was stripped of responsibilities as a 27 28 1 result of his public comment. Within a few days and after Kennard is alleged to have 2 provided a copy of Anglin's public comment to his direct supervisor and Uhlich (Centene 3 employees), Anglin was terminated and neither his direct supervisor nor Uhlich provided 4 Anglin with a non-retaliatory reason for the termination. Drawing reasonable inferences 5 from the SAC, it appears "indices of the Government's encouragement, endorsement, and 6 participation" to promote particular private conduct, Children's Health Def. v. Meta 7 Platforms, Inc., 112 F.4th 742, 762 (9th Cir. 2024), are present in this case, at least 8 sufficiently to state a claim upon which relief may be granted. 9 The Court finds Anglin's SAC would not be futile. The Court finds this factor 10 weighs in favor of granting the request to amend. 11 12 E. Previous Amendments 13 Anglin has previously amended his complaint once. Although Anglin knew of 14 Uhlich's involvement in the facts and previously had an opportunity to add her as a 15 defendant, Anglin did not seek to state claims against Uhlich in the FAC. The Court finds 16 this factor favors denial of the motion to amend. 17 18 F. Conclusion 19 Here, permitting the amendment would cause minimal, if any, prejudice to 20 Defendants and would not be futile. These factors weigh in favor of granting Anglin's 21 request. See Bonin, 59 F.3d at 845 (the factors are not given equal weight); Eminence Cap., 22 316 F.3d at 1052 ("it is the consideration of prejudice to the opposing party that carries the 23 greatest weight"). The neutrality of the bad faith, as well as the undue delay and prior filing 24 factors favoring denial of the motion, does not outweigh the lack of prejudice and lack of 25 futility. See Fed.R.Civ.P. 15(a) (leave to amend should be freely granted when justice so 26 requires). The Court will grant the Motion. 27 Additionally, the Court will schedule a Rule 16 Case Management Conference. The 28 1 Court may reset the conference depending when service and the filing of an Answer (or 2 other response) is completed. 3 4 Accordingly, IT IS ORDERED: 5 1. The Motion for Leave to File Second Amended Complaint (Doc. 37) is 6 GRANTED. Anglin shall file the Second Amended Complaint within ten days of the date 7 of this Order. See ECF Policies and Procedures Manual §II.H. ("If the motion to amend is 8 granted, the party seeking the amendment must file the amended pleading with the court and 9 serve it on the other parties. It will not automatically be filed by the Clerk's Office."). 10 2. Anglin shall include a copy of this Order with service of the Summons and 11 Second Amended Complaint upon Uhlich. If Anglin does not either obtain a waiver of 12 service of the summons or complete service of the Summons, Second Amended Complaint, 13 and this Order on Uhlich within 60 days of the filing of this Order, the action may be 14 dismissed as to Uhlich. Fed.R.Civ.P. 4(m); LRCiv 16.2(b)(2)(B)(ii). 15 3. Uhlich must answer the relevant portions of the Second Amended Complaint or 16 otherwise respond by appropriate motion within the time provided by the applicable 17 provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 18 4. A Case Management Conference is set for November 6, 2025, at 9:45 a.m.,with 19 Elizabeth J. Jarecki, law clerk to the Honorable Cindy K. Jorgenson. The parties are 20 referred to the requirements set forth in the Court's original Order setting a Case Managment 21 Conference. See October 31, 2024, Order (Doc. 14). 22 5. The conference will be held telephonically and Plaintiff's counsel shall initiate the 23 Case Management Conference by calling the law clerk at (520) 205-4550 with all appearing 24 attorneys on the line at the time of the Conference. If the law clerk needs to call a 25 conference line, Plaintiff's counsel shall notify the law clerk of the required information 26 (e.g., telephone number, conf. i.d. number) on or before October 30, 2025, by sending an 27 email to jorgenson_chambers@azd.uscourts.gov or including the information in the Joint 28 1 || Report. 2 5. Counsel shall file with the Court, on or before October 30, 2025, a Joint Report 3 || reflecting the results of their meeting and outlining the discovery plan. It is the 4 || responsibility of counsel for Plaintiff initiate the communication necessary to prepare the 5 || Joint Report, prepare the Joint Report, and file the Joint Report. Willful failure to comply 6 || may result in the imposition of sanctions. The parties are referred to the requirements of the 7 || Joint Report set forth in the Court's original Order setting a Case Management Conference. 8 || See October 31, 2024, Order (Doc. 14). 9 DATED this 21st day of August, 2025. 10 CE Gn pects Cindy K. Jorfénso 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12-