1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Dustin Matthews, ) No. CV-22-00407-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) City of Tempe, et al., ) 12 ) 13 Defendants. ) ) 14 )
15 Before the Court is Plaintiff Dustin Matthews’ (“Plaintiff”) Motion for Leave 16 (Doc. 24) in which Plaintiff requests leave to file the proposed Second Amended 17 Complaint that is attached to the Motion.1 Plaintiff’s Motion has been fully briefed and is 18 ready for review. (Docs. 24, 34 & 36). Plaintiff seeks to amend his complaint so that he 19 may add “additional basis for jurisdiction.” (Doc. 24 at 2). Specifically, he seeks to add 20 federal claims under 42 U.S.C. §§ 1983 and 12203 as well as state claims under A.R.S. 21 §§ 23-1501 and 41-1464. (Id.). Additionally, Plaintiff seeks to add claims under the 22 Arizona Civil Rights Act and the Arizona Employment Protections Act. (Id.). Finally, 23 Plaintiff supplements his complaint by adding additional facts. (Id.). 24 Defendants City of Tempe, Adrianne Ward, Alexis Allen, Jennifer Curtiss, and 25 Marcos Romero (collectively, “Defendants”) argue that Plaintiff’s Motion should be 26
27 1 As Defendants point out, Plaintiff’s proposed Second Amended Complaint would actually be his First Amended Complaint, given that Plaintiff withdrew his previous 28 Motion for Leave. (See Docs. 21, 23 & 29). 1 denied “to the extent it alleges claims under 2 U.S.C. § 1311, A.R.S. § 12-541, and for 2 intentional or negligent infliction of emotional distress.” (Doc. 34 at 3). For the following 3 reasons, the Court will grant in part and deny in part Plaintiff’s Motion for Leave. 4 Under Rule 15(a), where untimely amendment is sought, a party may amend its 5 pleadings “with the court’s leave . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). In 6 making this determination, courts consider the following relevant factors: undue delay, bad 7 faith or dilatory motives, futility of amendment, and undue prejudice to the opposing party. 8 Foman v. Davis, 371 U.S. 178, 182 (1962); see also Sharkey v. O’Neal, 778 F.3d 767, 774 9 (9th Cir. 2015). The Ninth Circuit has recognized that “there exists a presumption under 10 Rule 15(a) in favor of granting leave to amend.” C.F. v. Capistrano Unified Sch. Dist., 654 11 F.3d 975, 985 (9th Cir. 2011) (citations omitted) (emphasis in original). It follows that 12 courts are generally quite liberal when permitting leave to amend. See id. (noting that 13 policy should be applied with “‘extreme liberality’”). 14 Here, Defendants argue that some of the amendments Plaintiff proposes are futile, 15 but make no arguments as to any of the other factors. Specifically, Defendants assert that 16 Plaintiff’s attempt to assert a claim under A.R.S. § 12-541, (see Doc. 24-1 at 5 (adding 17 claim under A.R.S. [§] 12-541)), is futile because that statutory provision does not provide 18 a cause of action. (Doc. 34 at 2). The Court agrees. Section 12-541 states that certain 19 actions—including claims for malicious prosecution, breach of certain employment 20 contracts, and damages for wrongful termination—are subject to a one-year statute of 21 limitations. See A.R.S. § 12-541. However, § 12-541 does not itself provide for a cause of 22 action and it cannot be the basis of a claim. Thus, the Court denies Plaintiff’s Motion to 23 the extent that he seeks to add a claim under § 12-541 because such an amendment would 24 add nothing to Plaintiff’s complaint and would be futile. 25 Defendants also argue that Plaintiff’s Motion should be denied to the extent he seeks 26 to add claims for intentional or negligent infliction of emotional distress because the statute 27 of limitations on such state law claims had already ran at the time Plaintiff’s Complaint 28 was filed on March 16, 2022. (Doc. 34 at 2–3). It is true that the statute of limitations for 1 state law claims “against any public entity or public employee” is one year after the cause 2 of action accrues. See A.R.S. § 12-821 (“All actions against any public entity or public 3 employee shall be brought within one year after the cause of action accrues and not 4 afterward.”). Here, Defendants argue that Plaintiff was aware of the claims for intentional 5 and negligent infliction of emotional distress “at least as early as March 9, 2021.” In 6 support, Defendants point to Plaintiff’s reference to emotional distress in his 2nd 7 Supplemental Notice of Claim and Notice of Intent to File Lawsuit, which was received by 8 the City of Tempe on March 9, 2021. (Doc. 34 at 2). Thus, according to Defendants, 9 Plaintiff had until no later than March 9, 2022 to file state law actions for intentional and 10 negligent inflictions of emotional distress. (Id.). In this case, Plaintiff filed the Complaint 11 on March 16, 2022 and thus exceeded the one-year statute of limitations. (Id.). In the Reply, 12 Plaintiff cites to Wallace v. Kato, 549 U.S. 384, 388 (2007), for the proposition that a claim 13 accrues “when the plaintiff has a complete and present cause of action.” (Doc. 36 at 2). 14 Here, Plaintiff argues that he did not have a complete or present cause of action on March 15 9, 2021—the date upon which Defendants assert Plaintiff’s claim accrued. (Id.). Instead, 16 Plaintiff argues that Defendants’ “outrageous conduct and retaliatory acts continued after 17 March 9, 2021 and a separate notice of claim[] was filed on March 30, 2021.” (Id. 18 (emphasis added)). In other words, Plaintiff argues that—on March 9, 2021—his claims 19 for intentional and negligent inflictions of emotional distress “were not yet ripe” and “had 20 not begun to accrue.” (Id.). 21 Arizona courts have held that “a cause of action accrues when the damaged party 22 realizes he or she has been damaged and knows or reasonably should know the cause of 23 the damage.” Viniegra v. Town of Parker Mun. Prop. Corp., 241 Ariz. 22, 27 (Ct. App. 24 2016) (citations and internal quotations omitted) (emphasis in original). “A plaintiff need 25 not know all the facts underlying a cause of action to trigger accrual. But the plaintiff must 26 at least possess a minimum requisite of knowledge sufficient to identify a wrong occurred 27 and caused injury.” Id. (citations and internal quotations omitted) (emphasis in original). 28 At this stage in the case and without more facts—and given the parties’ dispute on this 1 issue—the Court will not determine whether Plaintiff’s now-asserted claims for intentional 2 or negligent inflictions of emotional distress accrued on March 9, 2021 or on some other 3 date on or after March 16, 2021. The Court will permit the addition of such claims at this 4 time—that is, to the extent that Plaintiff is even intending to add such claims.2 5 Finally, Defendants argue that Plaintiff’s Motion should also be denied to the extent 6 it alleges claims under 2 U.S.C. § 1311.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Dustin Matthews, ) No. CV-22-00407-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) City of Tempe, et al., ) 12 ) 13 Defendants. ) ) 14 )
15 Before the Court is Plaintiff Dustin Matthews’ (“Plaintiff”) Motion for Leave 16 (Doc. 24) in which Plaintiff requests leave to file the proposed Second Amended 17 Complaint that is attached to the Motion.1 Plaintiff’s Motion has been fully briefed and is 18 ready for review. (Docs. 24, 34 & 36). Plaintiff seeks to amend his complaint so that he 19 may add “additional basis for jurisdiction.” (Doc. 24 at 2). Specifically, he seeks to add 20 federal claims under 42 U.S.C. §§ 1983 and 12203 as well as state claims under A.R.S. 21 §§ 23-1501 and 41-1464. (Id.). Additionally, Plaintiff seeks to add claims under the 22 Arizona Civil Rights Act and the Arizona Employment Protections Act. (Id.). Finally, 23 Plaintiff supplements his complaint by adding additional facts. (Id.). 24 Defendants City of Tempe, Adrianne Ward, Alexis Allen, Jennifer Curtiss, and 25 Marcos Romero (collectively, “Defendants”) argue that Plaintiff’s Motion should be 26
27 1 As Defendants point out, Plaintiff’s proposed Second Amended Complaint would actually be his First Amended Complaint, given that Plaintiff withdrew his previous 28 Motion for Leave. (See Docs. 21, 23 & 29). 1 denied “to the extent it alleges claims under 2 U.S.C. § 1311, A.R.S. § 12-541, and for 2 intentional or negligent infliction of emotional distress.” (Doc. 34 at 3). For the following 3 reasons, the Court will grant in part and deny in part Plaintiff’s Motion for Leave. 4 Under Rule 15(a), where untimely amendment is sought, a party may amend its 5 pleadings “with the court’s leave . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). In 6 making this determination, courts consider the following relevant factors: undue delay, bad 7 faith or dilatory motives, futility of amendment, and undue prejudice to the opposing party. 8 Foman v. Davis, 371 U.S. 178, 182 (1962); see also Sharkey v. O’Neal, 778 F.3d 767, 774 9 (9th Cir. 2015). The Ninth Circuit has recognized that “there exists a presumption under 10 Rule 15(a) in favor of granting leave to amend.” C.F. v. Capistrano Unified Sch. Dist., 654 11 F.3d 975, 985 (9th Cir. 2011) (citations omitted) (emphasis in original). It follows that 12 courts are generally quite liberal when permitting leave to amend. See id. (noting that 13 policy should be applied with “‘extreme liberality’”). 14 Here, Defendants argue that some of the amendments Plaintiff proposes are futile, 15 but make no arguments as to any of the other factors. Specifically, Defendants assert that 16 Plaintiff’s attempt to assert a claim under A.R.S. § 12-541, (see Doc. 24-1 at 5 (adding 17 claim under A.R.S. [§] 12-541)), is futile because that statutory provision does not provide 18 a cause of action. (Doc. 34 at 2). The Court agrees. Section 12-541 states that certain 19 actions—including claims for malicious prosecution, breach of certain employment 20 contracts, and damages for wrongful termination—are subject to a one-year statute of 21 limitations. See A.R.S. § 12-541. However, § 12-541 does not itself provide for a cause of 22 action and it cannot be the basis of a claim. Thus, the Court denies Plaintiff’s Motion to 23 the extent that he seeks to add a claim under § 12-541 because such an amendment would 24 add nothing to Plaintiff’s complaint and would be futile. 25 Defendants also argue that Plaintiff’s Motion should be denied to the extent he seeks 26 to add claims for intentional or negligent infliction of emotional distress because the statute 27 of limitations on such state law claims had already ran at the time Plaintiff’s Complaint 28 was filed on March 16, 2022. (Doc. 34 at 2–3). It is true that the statute of limitations for 1 state law claims “against any public entity or public employee” is one year after the cause 2 of action accrues. See A.R.S. § 12-821 (“All actions against any public entity or public 3 employee shall be brought within one year after the cause of action accrues and not 4 afterward.”). Here, Defendants argue that Plaintiff was aware of the claims for intentional 5 and negligent infliction of emotional distress “at least as early as March 9, 2021.” In 6 support, Defendants point to Plaintiff’s reference to emotional distress in his 2nd 7 Supplemental Notice of Claim and Notice of Intent to File Lawsuit, which was received by 8 the City of Tempe on March 9, 2021. (Doc. 34 at 2). Thus, according to Defendants, 9 Plaintiff had until no later than March 9, 2022 to file state law actions for intentional and 10 negligent inflictions of emotional distress. (Id.). In this case, Plaintiff filed the Complaint 11 on March 16, 2022 and thus exceeded the one-year statute of limitations. (Id.). In the Reply, 12 Plaintiff cites to Wallace v. Kato, 549 U.S. 384, 388 (2007), for the proposition that a claim 13 accrues “when the plaintiff has a complete and present cause of action.” (Doc. 36 at 2). 14 Here, Plaintiff argues that he did not have a complete or present cause of action on March 15 9, 2021—the date upon which Defendants assert Plaintiff’s claim accrued. (Id.). Instead, 16 Plaintiff argues that Defendants’ “outrageous conduct and retaliatory acts continued after 17 March 9, 2021 and a separate notice of claim[] was filed on March 30, 2021.” (Id. 18 (emphasis added)). In other words, Plaintiff argues that—on March 9, 2021—his claims 19 for intentional and negligent inflictions of emotional distress “were not yet ripe” and “had 20 not begun to accrue.” (Id.). 21 Arizona courts have held that “a cause of action accrues when the damaged party 22 realizes he or she has been damaged and knows or reasonably should know the cause of 23 the damage.” Viniegra v. Town of Parker Mun. Prop. Corp., 241 Ariz. 22, 27 (Ct. App. 24 2016) (citations and internal quotations omitted) (emphasis in original). “A plaintiff need 25 not know all the facts underlying a cause of action to trigger accrual. But the plaintiff must 26 at least possess a minimum requisite of knowledge sufficient to identify a wrong occurred 27 and caused injury.” Id. (citations and internal quotations omitted) (emphasis in original). 28 At this stage in the case and without more facts—and given the parties’ dispute on this 1 issue—the Court will not determine whether Plaintiff’s now-asserted claims for intentional 2 or negligent inflictions of emotional distress accrued on March 9, 2021 or on some other 3 date on or after March 16, 2021. The Court will permit the addition of such claims at this 4 time—that is, to the extent that Plaintiff is even intending to add such claims.2 5 Finally, Defendants argue that Plaintiff’s Motion should also be denied to the extent 6 it alleges claims under 2 U.S.C. § 1311. The Court is unsure what Defendants are 7 referencing with this, as that statutory provision is not mentioned anywhere in Plaintiff’s 8 proposed Amended Complaint. (See generally Doc. 24-1). Moreover, Defendants do not 9 elaborate on this part of their Response argument, and instead mention 2 U.S.C. § 1311 10 only in the final “Conclusion” paragraph of the brief. The Court rejects Defendants’ 11 argument to the extent it relates to 2 U.S.C. § 1311. 12 In sum, the Court will exercise its discretion to freely grant Plaintiff leave to amend 13 his Complaint. That said, Plaintiff may not add claims for any violation of A.R.S. § 12-541 14 because that statutory provision does not provide for a cause of action. 15 Accordingly, 16 IT IS ORDERED that Plaintiff’s Motion for Leave to File Second Amended 17 Complaint (Doc. 24) is granted in part to the extent Plaintiff seeks leave to file the 18 amended complaint. However, Plaintiff’s Motion (Doc. 24) is denied to the extent Plaintiff 19 seeks to add claims for a violation of A.R.S. § 12-541. 20 IT IS FURTHER ORDERED that Plaintiff is directed to file a clean copy of the 21 First Amended Complaint (presently attached to Motion at Doc. 24-1) with the Clerk of 22 Court no later than July 15, 2022. The new copy of the First Amended Complaint shall 23 2 Plaintiff notes that his reference to intentional and negligent inflictions of 24 emotional distress is not intended as an assertion of additional, standalone claims, but rather 25 states that the claims that are “parasitic” to Plaintiff’s retaliation claims because they “arise[] out of or flow[] from the Plaintiff’s termination or retaliatory discharge.” (Doc. 36 26 at 2). Indeed, Plaintiff did not include the intentional and negligent inflictions of emotional 27 distress in the “Basis for Jurisdiction” or “Statement of Claims” sections of his amended complaint. Instead, he only mentions the emotional distress claims in the “Relief” section 28 at the very end of his amended complaint. (Doc. 24-1 at 16). 1 | omit any reference to a claim under A.R.S. § 12-541. 2 IT IS FURTHER ORDERED that, as provided by Rule 15(a)(3) of the Federal Rules of Civil Procedure, Defendants shall have fourteen (14) days from the date of 4} service of the First Amended Complaint to file an answer or otherwise respond in 5| accordance with Rule 12 of the Federal Rules of Civil Procedure. 6 Dated this 13th day of July, 2022. 7
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