1 2 6 7 JESSICA DOMINGUEZ, et al., Case No. 18-cv-04826-BLF
8 Plaintiffs, ORDER GRANTING PLAINTIFFS’ 9 v. MOTION TO AMEND SCHEDULING ORDER TO PERMIT FILING OF 10 CITY OF SAN JOSE, et al., THIRD AMENDED COMPLAINT 11 Defendants. [Re: ECF No. 115]
12 13 Before the Court is Plaintiffs’ motion to amend the scheduling order to permit Plaintiffs to 14 file a Third Amended Complaint in this civil rights action related to the alleged lethal shooting of 15 Jacob Arturo Dominguez by San Jose Police Department officer Michael Pina. See ECF No. 115. 16 This action is brought by Mr. Dominguez’s wife, Plaintiff Jessica Dominguez, as Mr. Dominguez’s 17 successor-in-interest and on her own behalf and as guardian ad litem for Mr. and Ms. Dominguez’s 18 three children (collectively, “Plaintiffs”). The question before the Court is whether to permit 19 Plaintiffs to amend their Second Amended Complaint to assert a Fourteenth Amendment claim for 20 their damages caused by the loss of Mr. Dominguez’s life. The Second Amended Complaint only 21 asserts claims vicariously on Mr. Dominguez’s behalf based on the alleged excessive force that led 22 to his death. Accordingly, if Plaintiffs are not allowed to amend their complaint, the Court has 23 determined that Plaintiffs cannot seek wrongful death damages for the loss of Mr. Dominguez’s life, 24 including loss of companionship and financial support. See Order on Motions in Limine, ECF No. 25 118 at 9–12. The last day to amend the pleadings was over three years ago, and the case is now 26 within weeks of trial. See ECF No. 24. 27 Based on the below reasoning, the Court GRANTS Plaintiffs’ motion. I. BACKGROUND 1 On November 8, 2018, the Court set the last day to amend the pleadings for January 7, 2019. 2 See ECF No. 24. Following multiple stipulated extensions of the last day for Plaintiffs to file an 3 amended complaint, Plaintiffs filed their Second Amended Complaint on April 12, 2019. See 4 Second Amended Complaint (“SAC”), ECF No. 37. Plaintiffs asserted three claims against Officer 5 Pina, the City of San Jose, and the San Jose Police Department: (1) a Section 1983 claim based on 6 alleged violation of Mr. Dominguez’s Fourth Amendment rights; (2) a claim under the Bane Act, 7 California Civil Code § 52.1, based on excessive force against Mr. Dominguez; and (3) a claim 8 under the Ralph Act, California Civil Code § 51.7, for an act of violence motivated by racial bias. 9 See SAC, ECF No. 37 ¶¶ 16–39. The Second Amended Complaint contained the following 10 allegation: 11
12 As the direct and proximate result of the conduct of the Defendants, Plaintiffs have been deprived of the decedent’s care, comfort, society, 13 protection, love, companionship, affection, solace, moral support, physical assistance in the operation and maintenance of the home, and 14 financial support.
15 SAC, ECF No. 37 ¶ 21. Following summary judgment motions, only the Section 1983 claim against 16 Officer Pina and the Bane Act claim remain. See Summary Judgment Order, ECF No. 70 at 12–17. 17 On July 14, 2022, the parties filed motions in limine. See ECF Nos. 79–87. In their second 18 motion in limine, Defendants sought an order excluding evidence of any wrongful death damages. 19 See Defendants’ Second Motion in Limine, ECF No. 80. Defendants argued that Plaintiffs only 20 brought claims vicariously on behalf of Mr. Dominguez, so only damages Mr. Dominguez could 21 have sought before his death are available—not damages that accrued following Mr. Dominguez’s 22 death. See id. Defendants further sought to exclude any reference to Ms. Dominguez’s children as 23 plaintiffs, since any claims Mr. Dominguez could have asserted prior to his death passed to 24 Ms. Dominguez alone as his successor-in-interest under California law. See id. The Court agreed 25 with Defendants, finding that under the Second Amended Complaint, Plaintiffs could not seek 26 wrongful death damages at trial because Plaintiffs had not asserted a Fourteenth Amendment claim 27 on behalf of Ms. Dominguez and her children for Mr. Dominguez’s death. See Order on Motions 1 in Limine, ECF No. 118 at 9–12. However, in light of the allegations regarding Plaintiffs’ 2 deprivation of Mr. Dominguez’s “care, comfort, society, protection, love, companionship, affection, 3 solace, moral support, physical assistance in the operation and maintenance of the home, and 4 financial support,” the Court allowed Plaintiffs the opportunity to seek leave to amend the Second 5 Amended Complaint to add a Fourteenth Amendment claim. See id. at 11. 6 In line with the Court’s order, Plaintiffs have now moved to amend the scheduling order to 7 allow them to file a Third Amended Complaint containing a Fourteenth Amendment claim asserted 8 on behalf of Ms. Dominguez and her children. See Motion, ECF No. 115. Plaintiffs argue that 9 Defendants have been on notice that wrongful death damages were at issue throughout the course 10 of this case, including based on paragraph 21 of the Second Amended Complaint and Plaintiffs’ 11 expert disclosures. See Motion, ECF No. 115. Defendants oppose, arguing that Plaintiffs do not 12 meet the “good cause” standard for amendment under Federal Rule of Civil Procedure 16 and that 13 Defendants would be prejudiced by Plaintiffs’ proposed amendment. See Opposition, ECF No. 119. 15 Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a 16 matter of course within 21 days of serving it. Fed. R. Civ. P. 15(a)(1). Further amendment of the 17 pleadings is allowed with the opposing party’s consent or leave of the court. Id. R. 15(a)(2). The 18 factors considered when determining whether to grant leave to amend include: “(1) bad faith on the 19 part of the movant; (2) undue delay; (3) prejudice to the opposing party; and (4) futility of the 20 proposed amendment.” Ciampi v. City of Palo Alto, No. 09–CV–02655–LHK, 2010 WL 5174013, 21 at *2 (N.D. Cal. Dec. 15, 2010) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). However, 22 “[o]nce the district court ha[s] filed a pretrial scheduling order pursuant to Federal Rule of Civil 23 Procedure 16 which established a timetable for amending pleadings[,] that rule’s standards 24 control[].” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–608 (9th Cir. 1992). A party 25 seeking to amend a scheduling order must show “good cause” for such relief. 26 Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s 27 consent.”). If the moving party establishes “good cause” to modify the scheduling order, “it must 1 No. 14–cv–00468–KAW, 2015 WL 5440788, at *2 (N.D. Cal. Sept. 15, 2015) (citing Johnson, 2 975 F.2d at 608). 3 The “good cause” analysis “is not coextensive with an inquiry into the propriety of the 4 amendment under [] Rule 15.” Johnson, 975 F.2d at 609. “Unlike Rule 15(a)’s liberal amendment 5 policy . . . Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking 6 the amendment.” Id. Courts may take into account any resulting prejudice to the opposing party, 7 but “the focus of the [Rule 16(b)] inquiry is upon the moving party’s reasons for seeking 8 modification ... [i]f that party was not diligent, the inquiry should end.” In re W. States Wholesale 9 Nat. Gas Antitrust Litig.,
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1 2 6 7 JESSICA DOMINGUEZ, et al., Case No. 18-cv-04826-BLF
8 Plaintiffs, ORDER GRANTING PLAINTIFFS’ 9 v. MOTION TO AMEND SCHEDULING ORDER TO PERMIT FILING OF 10 CITY OF SAN JOSE, et al., THIRD AMENDED COMPLAINT 11 Defendants. [Re: ECF No. 115]
12 13 Before the Court is Plaintiffs’ motion to amend the scheduling order to permit Plaintiffs to 14 file a Third Amended Complaint in this civil rights action related to the alleged lethal shooting of 15 Jacob Arturo Dominguez by San Jose Police Department officer Michael Pina. See ECF No. 115. 16 This action is brought by Mr. Dominguez’s wife, Plaintiff Jessica Dominguez, as Mr. Dominguez’s 17 successor-in-interest and on her own behalf and as guardian ad litem for Mr. and Ms. Dominguez’s 18 three children (collectively, “Plaintiffs”). The question before the Court is whether to permit 19 Plaintiffs to amend their Second Amended Complaint to assert a Fourteenth Amendment claim for 20 their damages caused by the loss of Mr. Dominguez’s life. The Second Amended Complaint only 21 asserts claims vicariously on Mr. Dominguez’s behalf based on the alleged excessive force that led 22 to his death. Accordingly, if Plaintiffs are not allowed to amend their complaint, the Court has 23 determined that Plaintiffs cannot seek wrongful death damages for the loss of Mr. Dominguez’s life, 24 including loss of companionship and financial support. See Order on Motions in Limine, ECF No. 25 118 at 9–12. The last day to amend the pleadings was over three years ago, and the case is now 26 within weeks of trial. See ECF No. 24. 27 Based on the below reasoning, the Court GRANTS Plaintiffs’ motion. I. BACKGROUND 1 On November 8, 2018, the Court set the last day to amend the pleadings for January 7, 2019. 2 See ECF No. 24. Following multiple stipulated extensions of the last day for Plaintiffs to file an 3 amended complaint, Plaintiffs filed their Second Amended Complaint on April 12, 2019. See 4 Second Amended Complaint (“SAC”), ECF No. 37. Plaintiffs asserted three claims against Officer 5 Pina, the City of San Jose, and the San Jose Police Department: (1) a Section 1983 claim based on 6 alleged violation of Mr. Dominguez’s Fourth Amendment rights; (2) a claim under the Bane Act, 7 California Civil Code § 52.1, based on excessive force against Mr. Dominguez; and (3) a claim 8 under the Ralph Act, California Civil Code § 51.7, for an act of violence motivated by racial bias. 9 See SAC, ECF No. 37 ¶¶ 16–39. The Second Amended Complaint contained the following 10 allegation: 11
12 As the direct and proximate result of the conduct of the Defendants, Plaintiffs have been deprived of the decedent’s care, comfort, society, 13 protection, love, companionship, affection, solace, moral support, physical assistance in the operation and maintenance of the home, and 14 financial support.
15 SAC, ECF No. 37 ¶ 21. Following summary judgment motions, only the Section 1983 claim against 16 Officer Pina and the Bane Act claim remain. See Summary Judgment Order, ECF No. 70 at 12–17. 17 On July 14, 2022, the parties filed motions in limine. See ECF Nos. 79–87. In their second 18 motion in limine, Defendants sought an order excluding evidence of any wrongful death damages. 19 See Defendants’ Second Motion in Limine, ECF No. 80. Defendants argued that Plaintiffs only 20 brought claims vicariously on behalf of Mr. Dominguez, so only damages Mr. Dominguez could 21 have sought before his death are available—not damages that accrued following Mr. Dominguez’s 22 death. See id. Defendants further sought to exclude any reference to Ms. Dominguez’s children as 23 plaintiffs, since any claims Mr. Dominguez could have asserted prior to his death passed to 24 Ms. Dominguez alone as his successor-in-interest under California law. See id. The Court agreed 25 with Defendants, finding that under the Second Amended Complaint, Plaintiffs could not seek 26 wrongful death damages at trial because Plaintiffs had not asserted a Fourteenth Amendment claim 27 on behalf of Ms. Dominguez and her children for Mr. Dominguez’s death. See Order on Motions 1 in Limine, ECF No. 118 at 9–12. However, in light of the allegations regarding Plaintiffs’ 2 deprivation of Mr. Dominguez’s “care, comfort, society, protection, love, companionship, affection, 3 solace, moral support, physical assistance in the operation and maintenance of the home, and 4 financial support,” the Court allowed Plaintiffs the opportunity to seek leave to amend the Second 5 Amended Complaint to add a Fourteenth Amendment claim. See id. at 11. 6 In line with the Court’s order, Plaintiffs have now moved to amend the scheduling order to 7 allow them to file a Third Amended Complaint containing a Fourteenth Amendment claim asserted 8 on behalf of Ms. Dominguez and her children. See Motion, ECF No. 115. Plaintiffs argue that 9 Defendants have been on notice that wrongful death damages were at issue throughout the course 10 of this case, including based on paragraph 21 of the Second Amended Complaint and Plaintiffs’ 11 expert disclosures. See Motion, ECF No. 115. Defendants oppose, arguing that Plaintiffs do not 12 meet the “good cause” standard for amendment under Federal Rule of Civil Procedure 16 and that 13 Defendants would be prejudiced by Plaintiffs’ proposed amendment. See Opposition, ECF No. 119. 15 Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a 16 matter of course within 21 days of serving it. Fed. R. Civ. P. 15(a)(1). Further amendment of the 17 pleadings is allowed with the opposing party’s consent or leave of the court. Id. R. 15(a)(2). The 18 factors considered when determining whether to grant leave to amend include: “(1) bad faith on the 19 part of the movant; (2) undue delay; (3) prejudice to the opposing party; and (4) futility of the 20 proposed amendment.” Ciampi v. City of Palo Alto, No. 09–CV–02655–LHK, 2010 WL 5174013, 21 at *2 (N.D. Cal. Dec. 15, 2010) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). However, 22 “[o]nce the district court ha[s] filed a pretrial scheduling order pursuant to Federal Rule of Civil 23 Procedure 16 which established a timetable for amending pleadings[,] that rule’s standards 24 control[].” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–608 (9th Cir. 1992). A party 25 seeking to amend a scheduling order must show “good cause” for such relief. 26 Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s 27 consent.”). If the moving party establishes “good cause” to modify the scheduling order, “it must 1 No. 14–cv–00468–KAW, 2015 WL 5440788, at *2 (N.D. Cal. Sept. 15, 2015) (citing Johnson, 2 975 F.2d at 608). 3 The “good cause” analysis “is not coextensive with an inquiry into the propriety of the 4 amendment under [] Rule 15.” Johnson, 975 F.2d at 609. “Unlike Rule 15(a)’s liberal amendment 5 policy . . . Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking 6 the amendment.” Id. Courts may take into account any resulting prejudice to the opposing party, 7 but “the focus of the [Rule 16(b)] inquiry is upon the moving party’s reasons for seeking 8 modification ... [i]f that party was not diligent, the inquiry should end.” In re W. States Wholesale 9 Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013), aff’d sub nom. Oneok, Inc. v. 10 Learjet, Inc., 135 S. Ct. 1591 (2015) (quoting Johnson, 975 F.2d at 609). 12 Two issues are before the Court: (1) whether Plaintiffs have shown good cause to amend 13 the scheduling order under Rule 16 and (2) whether Plaintiffs have shown that their proposed 14 amendment to the Second Amended Complaint is proper under Rule 15. The Court considers each 15 issue in turn. 16 A. Leave to Amend Scheduling Order under Rule 16 17 Plaintiffs argue that good cause exists for allowing their proposed amendment because the 18 fundamental interests of justice will be advanced by permitting Plaintiffs to formally plead the 19 wrongful death claim that the parties have been litigating throughout this litigation. See Motion, 20 ECF No. 115 at 2–4. Further, Plaintiffs argue that the amendment will not cause prejudice to 21 Defendants, because they have long been on notice of the substance of Plaintiffs’ wrongful death 22 claim. See id. at 1–2, 5. In support, Plaintiffs point to the discovery Defendants sought from Ms. 23 Dominguez’s children related to wrongful death damages, see Crowley Decl., ECF No. 115-1, Exs. 24 3–4; paragraph 21 of the Second Amended Complaint; and the report of Plaintiffs’ expert Phillip 25 Allman, which was disclosed on April 6, 2021 and which pertains to wrongful death damages, see 26 id., Ex. 2. Plaintiffs also point to Defendants’ failure to move to strike Plaintiffs’ wrongful death 27 allegations or the allegations related to Ms. Dominguez’s children throughout the litigation. See 1 In response, Defendants argue that Plaintiffs seek to amend their complaint based on their 2 carelessness in failing to assert a Fourteenth Amendment claim earlier in the litigation, so Plaintiffs 3 fail to show diligence or good cause under Rule 16. See Opposition, ECF No. 119 at 2–5. Further, 4 Defendants argue that they would be prejudiced by Plaintiffs’ proposed amendment at this late stage 5 of litigation. See id. at 5–6. In support, Defendants point to the fact that they did not pursue an 6 expert to oppose Mr. Allman’s testimony; they did not depose Ms. Dominguez’s minor children; 7 they have prepared for trial in reliance on the scheduling order and Plaintiffs’ claims asserted in the 8 Second Amended Complaint; and they had no opportunity to move to dismiss or for summary 9 judgment as to any Fourteenth Amendment claim. See id. 10 The Court agrees with Plaintiffs as to good cause. The Court finds that it is in the interest 11 of justice to allow Plaintiffs to amend their complaint to include a Fourteenth Amendment claim. 12 The amendment Plaintiffs seek is only a technical amendment. Plaintiffs have amply disclosed the 13 fact that they are seeking wrongful death damages throughout the litigation, including in 14 paragraph 21 of the Second Amended Complaint. Denying Plaintiffs the opportunity to include the 15 magic words “Fourteenth Amendment” and thereby seek wrongful death damages at trial when it is 16 clear that the parties have understood throughout the litigation that Plaintiffs sought wrongful death 17 damages would be unfair. 18 Defendants’ argument that the Court should deny Plaintiffs’ motion because Plaintiffs’ 19 conduct has shown a lack of diligence is unavailing. Moving for the Court to allow a technical 20 amendment like the one Plaintiffs seek does not betray a lack of diligence, particularly when 21 Plaintiffs have alleged wrongful death damages throughout the litigation. Defendants’ case law 22 involves much more serious failures of disclosure than the formality at issue here. See Johnson, 23 975 F.2d at 606–607 (plaintiff failed to amend complaint even after defendant’s counsel wrote letter 24 inquiring whether plaintiff intended to remedy deficiency with complaint); Western States 25 Wholesale Nat’l Gas Antitrust Litig., 715 F.3d 716, 736–38 (9th Cir. 2013) (plaintiff failed to timely 26 assert federal antitrust claims). 27 Further, the Court agrees with Plaintiffs that Defendants have not shown sufficient prejudice 1 are seeking wrongful death damages for years. The Second Amended Complaint, which included 2 paragraph 21 alleging wrongful death damages, was filed on April 12, 2019—nearly three and a 3 half years ago. See SAC, ECF No. 37. Plaintiffs disclosed the expert report of Mr. Allman, which 4 disclosed opinions related to wrongful death damages, on April 6, 2021—nearly a year and half ago. 5 See Crowley Decl., ECF No. 115-1, Ex. 2. Accordingly, Defendants have had ample opportunity 6 to litigate wrongful death damages throughout the course of this case. In fact, Defendants have 7 sought discovery on this issue. See Crowley Decl., ECF No. 115-1, Exs. 3–4; see also Crowley 8 Decl., ECF No. 115-1, Ex. 5. 9 Defendants argue that they had no opportunity to move to dismiss or for summary judgment 10 as to Plaintiffs’ Fourteenth Amendment claim. See Opposition, ECF No. 119 at 5. But as Plaintiffs 11 point out, Defendants could have moved to strike paragraph 21 of the Second Amended Complaint 12 throughout the course of this litigation, and Defendants declined to do so. See Motion, ECF No. 13 115 at 2. It appears more likely that Defendants made a tactical decision to wait until the last minute 14 to raise this issue in hopes that they would have run out the clock on amendments. Defendants 15 further argue that they did not pursue an expert to oppose Mr. Allman’s testimony regarding 16 wrongful death damages. See Opposition, ECF No. 119 at 5. The Court is not sympathetic, given 17 that Defendants had ample notice of Plaintiffs’ wrongful death allegations. Further, Defendants had 18 an opportunity to depose Mr. Allman. See Crowley Decl., ECF No. 115-1, Ex. 5. These facts 19 suggest that Defendants made a decision not to retain a wrongful death damages expert, knowing 20 that wrongful death may end up being at issue at trial. Defendants now must live with that decision. 21 Defendants additionally argue that they have been preparing for trial in reliance on the claims 22 Plaintiffs asserted in their Second Amended Complaint. See Opposition, ECF No. 119 at 5. But the 23 Court gave Defendants the opportunity to seek a continued trial date, and Defendants indicated at 24 the August 2, 2022 case management conference that they would not be seeking a continued trial 25 date if Plaintiffs were given leave to amend their complaint. 26 The Court acknowledges that allowing Plaintiffs to amend their complaint on the eve of trial 27 comes with the risk of some prejudice to Defendants. However, based on the above reasoning, the 1 Rule 16. 2 Accordingly, the Court finds that Plaintiffs have shown good cause under Federal Rule of 3 || Civil Procedure 16 for leave to amend the scheduling order. 4 B. Leave to Amend Complaint under Rule 15(a)(2) 5 The remaining question before the Court is whether Plaintiffs have shown that amendment 6 || of the Second Amended Complaint is appropriate under Federal Rule of Civil Procedure 15(a)(2). 7 || Plaintiffs argue that their proposed amendment will not cause any delay since the trial date should 8 be maintained; the amendment will not cause Defendants prejudice for the reasons outlined above; 9 and Plaintiffs’ conduct does not suggest bad faith or a dilatory motive. See Motion, ECF No. 115 10 at 5. Other than prejudice, Defendants fail to provide any argument regarding the factors under ll Rule 15(a)(2). The Court agrees with Plaintiffs. Since the case schedule will remain the same if 12 || Plaintiffs amend their complaint; prejudice to Defendants is minimal; and there is no indication of 5 13 bad faith or dilatory motive—Plaintiffs promptly moved to amend their complaint upon notice of 14 || its deficiencies by the Court—the Court finds that Plaintiffs’ amendment is proper under Rule 3 15 15(a)(2). 16 || IV. ORDER 3 17 Based on the above reasoning, the Court GRANTS Plaintiffs’ motion. Plaintiffs SHALL 18 file their Third Amended Complaint within three days of this Order. 20 21 || Dated: August 8, 2022 kom hh han □□□ 22 BETH LABSON FREEMAN 23 United States District Judge 24 25 26 27 28