Lake v. City of Vallejo

Opinion

JOSEPH LAKE, No. 2:19-cv-01439-KJM-KJN Plaintiffs, v.

CITY OF VALLEJO, VALLEJO POLICE DEP’T, GREG NYHOFF, STEVE DARDEN, ANTHONY ROMERO- CANO, TRAVIS ASPERGREN, THEODORE “TED” J. POSTOLAKI, GREGG ROUSE, TIMOTHY NICHOLS, LEE HORTON, SANJAY RANU-AKHA, ANDREW BIDOU, and DOES 1-15, Defendants.

This order resolves three motions: First, defendant City of Vallejo moves to strike the first amended complaint as untimely, Mot. to Strike, ECF No. 23, which plaintiff opposes, Opp’n to Mot. to Strike, ECF No. 28. Second, plaintiff Joseph Lake moves to file a superseding amended complaint, Mot. to Amend, ECF No. 25, which defendants oppose, Opp’n to Mot. to Amend, ECF No. 29. Third, defendants move for sanctions based on the contents of the first amended complaint. Mot. for Sanctions, ECF No. 32.

A. Factual Allegations1 On July 27, 2018, three City of Vallejo police officers responded to a call reporting a shooting victim. Police Reports, ECF No. 21-8 at 8–9.2 Mr. Lake, a witness to the incident, was walking away from the scene when the officers arrived. Id. The officers, suspecting Mr. Lake may have been involved, asked Mr. Lake to produce identification three times; each time he refused. First Am. Compl. (“FAC”), ECF No. 21 ¶ 24; Police Reports at 8–9. They then, according to police reports, moved to place Mr. Lake in handcuffs. Police Reports at 8–9. When Mr. Lake again did not comply with instructions, the three officers at the scene elected to physically take him down to the ground. Id. The situation quickly got violent; after taking Mr. Lake to the ground, the officers physically restrained him, and Mr. Lake contends they broke his right arm. Id.; Am. Compl. ¶¶ 25–35. At each step, when describing their decision to request identification from Mr. Lake, their decision to handcuff him, and their decision to restrain him forcefully, the police emphasized that Mr. Lake “is 6’5” tall and weighs 330 pounds.” Police Reports at 8–9. Mr. Lake was arrested by the officers for misdemeanor obstruction of justice, but charges were never brought due to insufficient evidence. Notice of Intent Not to Prosecute, ECF No. 21-9 at 2. B. Procedural Background On July 26, 2019, plaintiff filed his complaint, alleging unlawful stop, detention, search and seizure and prosecution, and bringing an excessive force claim against defendants under 42 U.S.C. § 1983. Compl., ECF No. 1, ¶¶ 29–46. On August 26, 2019, defendants filed their answer and demanded a jury trial. Answer, ECF No. 8. On December 13, 2019, the court convened an initial scheduling conference at which plaintiff’s counsel did not appear. ECF No. 12. At the scheduling conference, the court issued a pretrial scheduling order requiring that /////

1 To the extent the court references a complaint in this section, it references the First Amendment Complaint as the operative pleading. 2 The complaint erroneously identifies July 18, 2018 as the date of the incident. any amendments to the complaint be completed by February 28, 2020. The parties later stipulated to postpone the amendment deadline to March 20, 2020. ECF No. 20. Plaintiff filed his first amended complaint after the new deadline, on March 24, 2020. See FAC. Defendants responded with this motion to strike on April 7, 2020, alleging the late filing was unduly prejudicial, see Mot. to Strike. On April 13, 2020, plaintiff filed the pending motion to amend his complaint. See Mot. to Amend. Plaintiff filed his opposition to the motion to strike on May 26, 2020, and defendants, all represented by the same counsel, filed their opposition to plaintiff’s motion to amend on June 11, 2020. The parties filed their respective replies on June 18, 2020, and defendants filed their motion for sanctions on June 19. Defendant Reply, ECF No. 30; Plaintiff Reply, ECF No. 31; Mot. for Sanctions, ECF No. 32. The court analyzes the motions in the order filed. A. Legal Standard Federal Rule of Civil Procedure 12(f) provides “[t]he court may strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” “‘Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded[, and] [i]mpertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question.’” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706–07, 711 (1990)), rev’d on other grounds by 510 U.S. 517 (2004). A 12(f) motion to strike serves “to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . .” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). The granting of a motion to strike “may be proper if it will make trial less complicated or eliminate serious risks of prejudice to the moving party, delay, or confusion of the issues.” Taheny v. Wells Fargo Bank, N.A., No. 10-2123, 2011 WL 1466944, at *2 (E.D. Cal. Apr. 18, 2011) (citing Fantasy, 984 F.2d at 1527-28). However, “[m]otions to strike are disfavored and infrequently granted.” Neveau v. City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005) (citations omitted). Indeed, a motion to strike “‘should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.’” Id. (quoting Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991)); see also Wynes v. Kaiser Permanente Hospitals, No. 10–00702, 2011 WL 1302916, at *12 (E.D. Cal. Mar. 31, 2011) (noting “courts often require a showing of prejudice by the moving party”). A party seeking to justify a late filing must show the neglect demonstrated by the lateness was “excusable.” Fed. R. Civ. P. 6(b)(1)(B). “Excusable neglect” is an “equitable doctrine” determined by application of a four-part test laid out in Pioneer Inv. Servs. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 395 (1993). The four factors are “the danger of prejudice to the [non-filing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within reasonable control of the movant, and whether the movant acted in good faith.” Iopa v. Saltchuk-Young Brothers, Ltd., 916 F.3d 1298, 1301 (9th Cir. 2019) (quoting Pioneer, 507 U.S. at 395). “[U]nder Pioneer, the correct approach is to avoid any per se rule,” and the Ninth Circuit has left “the weighing of Pioneer’s equitable factors to the discretion of the district court in every case.” Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004). B. Discussion Defendants’ motion to strike claims the increased costs stemming from “having to file this motion” and defects they identify in the first amended complaint itself are prejudicial, while recognizing the four day delay in filing is not prejudicial. Mot. at 5. They contend the prejudice, weighed against the excuses of plaintiff, require that the court strike the first amended complaint. Id. Plaintiff’s counsel’s justification for her late filing rests on two main points. First, she claims hardships posed by the current COVID-19 pandemic created a situation that made timely filing extremely difficult. Opp’n at 5-7. Specifically, she represents she is a single mother of a recently ill 21-month-old, which required she spend time gathering supplies as stay-at-home orders went into effect. This essential task led to scheduling conflicts, compounded by the need ///// to coordinate with experts and her paralegals who also were impacted by the pandemic. Opp’n at 6; see also Declaration of Wendy Chau (Chau Decl.) ¶¶ 5–10, ECF No. 28-1. Second, plaintiff’s counsel asserts when she attempted to reach out to defense counsel on March 20, 2020 by phone and email, she received no response. Chau Decl. ¶¶ 11–15. She attributes the silence at least partly to confusion about who was representing defendants. Opp’n at 6. Ms. Chau says she first reached out by phone and email to Mr. Timothy Smyth, the prior attorney of record for all defendants on the matter, but received no response. Id.; see also Opp’n Ex. 2, ECF No. 28-2 (email response plaintiff’s counsel received when requesting an extension from Mr. Smyth and Vallejo City Attorney). She also says that Mr. John Whitefleet, who replaced Mr. Smyth as attorney of record on March 25th, ECF No. 22, had previously introduced himself as an attorney on the case, but prior to his formal substitution. Opp’n at 6. Ms. Chau claims under the circumstances she was confused about who was the proper attorney from whom to seek an extension of time. Defendants do not dispute any of plaintiff’s representations. See Reply to Opp’n to Mot. to Strike, ECF No. 30. Turning to the Pioneer factors, the court finds plaintiff’s late filing did not create a significant delay or danger of prejudice for defendants. Defendants had already agreed to the extension for amendment to the 20th, and so knew an amended complaint was coming. They concede “four days is not prejudicial in terms of timing,” Mot., at 5; see also Reply at 2, and the amended pleading was still filed a day before a new defense attorney substituted into the case, see Substitution of Attorney, ECF No. 22, rendering any disruption minimal if not nonexistent. While defendants argue the costs imposed by their filing the motion to strike and otherwise in responding to the amended complaint do rise to the level of undue prejudice, Mot. at 5, the court is unpersuaded. In part, defendants effectively ask the court to disregarding Rule 15’s presumption in favor of granting leave to amend. The court finds no prejudice was created by the late filing. Moreover, nothing in the record suggests plaintiff’s counsel was engaging in any form of disfavored gamesmanship. Rather, COVID-19 disrupted her life and business as it has so many others, in ways it appears she did her best to manage. While reaching out to opposing counsel only on the date the amended complaint was due does not conform to best practice, doing so does not provide evidence of bad faith. See Opp’n at 6; see also Chau Decl. ¶¶ 11, 12. This is especially so given that counsel filed the amended complaint only four days later. See FAC; see also Opp’n at 6; Chau Decl. ¶ 21. Given the lack of prejudice, bad faith or significant delay, and the unprecedented nature of the circumstances at the time, the court finds the late filing here was the result of excusable neglect and DENIES the motion to strike. A. Legal Standard A party seeking leave to amend pleadings after a deadline specified in the scheduling order must first satisfy Federal Rule of Civil Procedure 16(b)’s “good cause” standard. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608–09 (9th Cir. 1992). Under Rule 16(b), “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The burden of showing good cause is on the moving party. See Johnson, 975 F.2d at 608; see also Bella + Canvas LLC v. Artcanvas Inc., No. CV 19-4301, 2020 WL 1972580, at *1 (C.D. Cal. March 11, 2020). Distinct from Rule 15(a)’s liberal amendment policy, Rule 16(b)’s good cause standard focuses primarily on the diligence of the moving party, and its reasons for seeking modification. Johnson, 975 F.2d at 609. Generally, a three-part test is applied to make Rule 16(b)(4) good cause determinations. See, e.g., Pac. Coast Fed’n of Fishermen’s Associations v. Murrillo, No. 211-cv- 02980, 2017 WL 1166145, at *2-3 (E.D. Cal. 2017); see also Jackson v. Laureate Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999). A movant may demonstrate good cause by showing (1) it diligently assisted the court in creating a workable Rule 16 order, see In re San Juan Dupont, 111 F.3d 220, 228 (9th Cir. 1999) (“. . .all litigants must share in their mutual obligation to collaborate with the district court ab initio in fashioning adequate case management and trial procedures, or bear the reasonably foreseeable consequences of their failure to do so”); (2) non- compliance with a scheduling deadline was due to developments that were not reasonably foreseeable at the time of the scheduling conference, see Johnson, 975 F.2d at 609 (“as a practical matter, extraordinary circumstances is a close correlate of good cause”); (3) it promptly and diligently sought amendment of the scheduling order once it became apparent it would not be able to comply with the deadline, see Eckert Cold Storage, Inc. v. Behl, 943 F. Supp. 1230, 1233 (E.D. Cal. 1996) (“The focus of the Rule 16 good cause inquiry is on the moving party’s diligence, or lack thereof, in seeking amendment.” (internal quotation omitted)). The Ninth Circuit has been clear that the third, last prong is the most significant: “‘Rule 16(b)’s good-cause standard primarily considers the diligence of the party seeking the amendment.’” Federal Trade Comm’n v. Marshall, 781 Fed. Appx. 599, 603 (9th Cir. 2019) (quoting Johnson, 975 F.2d at 609). If good cause exists, the movant next must satisfy Rule 15(a). Cf. id. at 608 (citing approvingly Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 1987), for explication of this order of operations). Federal Rule of Civil Procedure 15(a)(2) provides, “[t]he court should freely give leave [to amend the pleadings] when justice so requires” and the Ninth Circuit has “stressed Rule 15’s policy of favoring amendments.” Ascon Props, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). “In exercising its discretion ‘a court must be guided by the underlying purpose of Rule 15—to facilitate decision on the merits rather than on the pleadings or technicalities.’” DCD Programs, Ltd. v. Leighton et al., 833 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). Courts consider five factors in determining whether justice requires allowing amendment under Rule 15(a): “bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the [party] has previously amended his pleadings.” Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (citation omitted); see also Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citing Western Shoshone Nat’l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991)). B. Discussion Plaintiff’s arguments rest solely on Rule 15(a)(2)’s standard providing that leave to amend should be granted when “justice requires,” which strongly favors allowing amendments. See Ascon Props., Inc., 866 F.2d at 1160. Plaintiff is incorrect in arguing Rule 16(b) is not applicable here. See Mot. at 7; see also Mot. to Amend Reply (“Reply”) at 1-2, ECF No. 31. The motion to amend comes well after the deadline set during the scheduling conference, and therefore requires application of the two-step analysis described in Johnson, 975 F.2d at 608–09. Plaintiff must satisfy both 16(b)(4) and 15(a)(2) to justify the filing of a second amended complaint at this juncture. Given Rule 16’s allowance for courts to effectively control their docket, the court finds good cause in this case despite the deficiencies in plaintiff’s motion. See Eckert Cold Storage, Inc., 943 F. Supp. at 1233. First, the COVID-19 pandemic was undeniably “not reasonably foreseeable” when the scheduling conference took place on December 13, 2019. ECF No. 12, see Coronavirus Timeline, N.Y. Times (on December 31, “Chinese authorities treated dozens of cases of pneumonia of unknown cause”; January 11 reportedly first date deaths recorded).3 Second, plaintiff appears to have taken steps reasonably “promptly and diligently” to seek an amendment to the scheduling order as reviewed above. Plaintiff’s request to file a second amended complaint arises from the same factual circumstances leading to defendants’ request to strike the first amended complaint. The request to amend is meant to correct deficiencies plaintiff’s counsel attributes to the haste with which she drafted the first amended complaint in the chaotic early days of the COVID-19 pandemic. See Chau Decl. ¶¶ 5–10. Plaintiff asserts, and defendants don’t dispute, that since Mr. Whitefleet’s substitution, counsel has attempted to reach a stipulation allowing her to cure the pleading errors defendants identify. See Mot. to Amend. at 10. Defendants do not argue prejudice, and this court does not independently observe any prejudicial effect from granting leave to amend. The court GRANTS plaintiff’s motion for leave to file a second amended complaint. ///// ///// ///// 3 https://www.nytimes.com/article/coronavirus-timeline.html (last accessed Oct. 14, 2020). A. Legal Standard Rule 11 sanctions are an extraordinary remedy and are “reserve[d] . . . for the rare and exceptional case where the action is clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose.” Operating Engineers Pension Trust v. A-C Co., 859 F.2d 1336, 1344 (9th Cir. 1988). “[T]he central purpose of Rule 11 is to deter baseless filings in district court and thus . . . streamline the administration and procedure of the federal courts.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990) (citing Advisory Committee Note on Rule 11, 28 U.S.C. App., p. 576). Rule 11 imposes a duty on attorneys to “conduct a reasonable factual investigation” and perform “adequate legal research” to determine whether the “theoretical underpinnings of the complaint are warranted by existing law or a good faith argument for an extension, modification or reversal of existing law.” Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002) (internal citations omitted); see also Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 551 (1991). Sanctions stemming from the complaint must satisfy this two-prong test: (1) is the complaint “legally or factually ‘baseless’ from an objective perspective,” and (2) has the attorney conducted “‘a reasonable and competent inquiry’ before signing and filing it.” Christian, 286 F.3d at 1127 (quoting Buster v. Greisen, 104 F.3d 1186, 1190 (9th Cir. 1997). If the complaint is both baseless, and the attorney has not conducted reasonable inquiry, then Rule 11 sanctions are appropriate. B. Discussion The court declines to impose sanctions on plaintiff, while cautioning against repeating pleading by way of the kind of speculation evident in the operative complaint. Defendants point to language in the complaint they say is “hyperbole” and inflammatory, and meant to “prolong and multiply the proceedings, and materially increase the burden on [d]efendants or the court, or [] presented for an improper purpose” and so is sanctionable. Mem. of Points & Authorities in Support of Rule 11 Sanctions, ECF 32-1 at 2. They go on to identify 13 of the 117 paragraphs in the complaint specifically as containing unsupported and inflammatory language. Id. at 2-3. These paragraphs contain claims alleging, for example, organization-wide post-traumatic stress disorder (PTSD) among the ranks of the Vallejo Police Department, and that officers act on “a gang like mentality and/or hating and/or having a fear of black men.” FAC ¶¶ 57, 58. This language, unsupported by meaningful factual allegations, is speculative and not consistent with what is required to state a claim in federal court. The court declines at this point however to find the complaint as a whole is “legally or factually baseless,” Christian, 286 F.3d at 1127, given plaintiff’s request to further amend the complaint and the opportunity amendment provides to ensure the complaint is fully compliant with Rule 11. Defendant’s motion for sanctions is DENIED. The motion to strike is DENIED, the motion to amend is GRANTED, and the motion for sanctions is DENIED. This order resolves ECF Nos. 23, 25, 32. DATED: December 24, 2020.