Shawn Gerrits, et al. v. County of Pima, et al.

• Court: District Court, D. Arizona
• Decided: October 21, 2025
• Docket: 4:25-cv-00454
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Shawn Gerrits, et al., No. CV-25-00454-TUC-RM

10 Plaintiffs, ORDER

11 v.

12 County of Pima, et al.,

13 Defendants. 14 15 Pending before the Court is Defendants’ Motion to Strike Plaintiffs’ Second 16 Amended Complaint (Doc. 11), to which Plaintiffs responded in opposition (Doc. 12). For 17 the following reasons, the Court will grant the Motion to Strike. 18 I. Procedural History 19 Plaintiff Shawn Gerrits filed his original Complaint in the Pima County Superior 20 Court on July 9, 2025. (Doc. 1-1 at 4-86.)1 He then filed a First Amended Complaint 21 (“FAC”) that added the Law Office of Shawn Gerrits, PLLC as an additional Plaintiff. (Id. 22 at 90-170.) Defendants removed the action to the United States District Court for the 23 District of Arizona on August 7, 2025. (Doc. 1.) Following removal, the Court granted 24 Defendants’ unopposed request for an extension of their responsive pleading deadline. 25 (Docs. 7, 8.) 26 On August 14, 2025, Plaintiffs filed a Second Amended Complaint (“SAC”), 27 without seeking leave of Court to do so. (Doc. 9.) Defendants then filed the pending Motion

28 1 All record citations herein refer to the page numbers generated by the Court’s electronic filing system. 1 to Strike. (Doc. 11.) The Court vacated Defendants’ deadline for responding to Plaintiffs’ 2 FAC pending resolution of the Motion to Strike. (Doc. 13.) 3 II. Legal Standard 4 A. Motions to Strike 5 Under Local Rule of Civil Procedure (“LRCiv”) 7.2(m), a motion to strike “may be 6 filed only if it is authorized by statute or rule . . . or if it seeks to strike any part of a filing 7 or submission on the ground that it is prohibited (or not authorized) by statute, rule, or court 8 order.” 9 B. Amending Pleadings 10 Pursuant to Rule 15 of the Federal Rules of Civil Procedure, a party may amend its 11 pleading once as a matter of course within 21 days after serving it or 21 days after service 12 of a responsive pleading or a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). 13 “In all other cases, a party may amend its pleading only with the opposing party’s written 14 consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The District of Arizona’s Local 15 Rules of Civil Procedure provide for additional procedural requirements, including 16 attachment of a red-lined copy of the amended pleading differentiating it from the prior 17 pleading. LRCiv 15.1. 18 When a party has obtained the opposing party’s consent to amend, the amending 19 party does not need the Court’s permission to amend. Fern v. United States, 213 F.2d 674, 20 677 (9th Cir. 1954). An amendment by consent is not subject to the Court’s discretion, and 21 the Court must permit such an amendment when filed. Wright & Miller, Federal Practice 22 & Procedure: Civil § 1490 (1989). Rule 15(a)(2) does not state that the consent should take 23 any particular form, so long as it is written down; therefore, “any writing clearly indicating 24 that consent has been given should suffice.” § 1490 Consent of Adverse Party, 6 Fed. Prac. 25 & Proc. Civ. § 1490 (3d ed.). 26 When a party seeks leave of Court to amend, the Court “should freely give leave 27 when justice so requires.” Fed. R. Civ. P. 15(a)(2). It is within the Court’s discretion to 28 grant or deny a motion to amend. Foman v. Davis, 371 U.S. 178, 182 (1962). The Court 1 must, however, provide a justifying reason for the denial of such a motion—such as undue 2 delay, bad faith, undue prejudice to the opposing party, futility of amendment, or repeated 3 failure to cure deficiencies by prior amendments. Id. 4 III. Discussion 5 Because Plaintiffs had already amended their pleading once as a matter of course, 6 they needed leave of Court or the opposing party’s written consent to file the SAC. See 7 Fed. R. Civ. P. 15(a)(1)-(2); see also, e.g., Hanks v. Harper, No. CV-19-03174-PHX-DLR, 8 2019 WL 6050229, at 2 (D. Ariz. Nov. 15, 2019) (granting a motion to strike a pleading 9 where the plaintiff had already filed amendments in state court and did not seek leave of 10 Court or the opposing party’s written consent). Plaintiffs did not seek leave of Court prior 11 to filing the SAC. Therefore, whether the SAC was properly filed is contingent on whether 12 Defendants provided written consent. 13 Before Plaintiffs filed the SAC, Plaintiffs and Defendants engaged in 14 correspondence regarding alleged deficiencies of the FAC. (See Doc. 11-1; Doc. 12-1.) 15 Defendants concede that they offered to stipulate to an amended complaint addressing the 16 alleged deficiencies of the FAC, but they aver that the Plaintiffs “plainly rejected” their 17 offer. (Doc. 11 at 3.) Alternatively, Defendants argue that even if their “offer to stipulate” 18 is considered a written consent to amendment, Plaintiffs’ SAC goes well beyond the scope 19 of the consent offered, which Defendants aver was limited to the issue of a lack of factual 20 allegations in the FAC related to Plaintiff Law Office of Shawn Gerrits, PLLC. (Doc. 11 21 at 2-4.) Defendants submit email correspondence between the parties in which Defendants 22 note the PLLC issue and suggest that Plaintiffs “amend the complaint to fix this 23 deficiency.” (Doc. 11-1 at 3-7.) In response, Plaintiffs argue that Defendants identified 24 alleged deficiencies far beyond the PLLC issue during the parties’ meet-and-confer efforts. 25 (Doc. 12 at 3.) Plaintiffs submit a letter in which Defendants outline numerous alleged 26 deficiencies in the FAC and ask Plaintiffs to dismiss or amend their claims. (Doc. 12-1 at 27 2-4.) 28 Even if the Court were to view the parties’ correspondence as written consent to 1 || amend pursuant to Federal Rule of Civil Procedure 15(a)(2), Plaintiffs’ SAC goes beyond || the scope of Defendants’ consent. For example, the SAC adds a new claim for tortious || interference with prospective economic advantage. (See Doc. 9 at 92-94.) Because the SAC 4|| goes beyond the scope of Defendants’ consent to amend, the SAC was not properly filed || based on the consent of the opposing party.” 6 Plaintiffs ask the Court to grant leave to amend nunc pro tunc (Doc. 12 at 3-4), but 7\| the Court declines to do so, because Plaintiffs’ failure to file a motion to amend denied 8 || Defendants a fair opportunity to file a response addressing the propriety of the proposed || amendments. Because Plaintiffs’ SAC is not authorized by any statute, rule, or court order, 10 || the Court will grant Defendants’ Motion to Strike. Plaintiffs are free to move for leave to 11 |} amend in accordance with Federal Rule of Civil Procedure 15 and LRCiv 15.1. 12 IT IS ORDERED that Defendants’ Motion to Strike Plaintiffs’ Second Amended 13 || Complaint (Doc. 11) is granted. Plaintiffs’ Second Amended Complaint (Doc. 9) is stricken from the record. 15 IT IS FURTHER ORDERED that, pursuant to the Court’s August 20, 2025 Order 16|| (Doc. 13), Defendants shall answer or otherwise respond to Plaintiffs’ First Amended 17 || Complaint within twenty (20) days of the date this Order is filed. 18 Dated this 20th day of October, 2025. 19 20 Honorable Rostvhary □□ 23 United States District □□□□□ 24 25 26 2 Additionally, Plaintiffs failed to comply with the Local Rules of Civil Procedure 28|| their Response to the Motion to Strike (Doe. 12-1 at 6-101), Plaintifis failed to attach 2 red-lined copy at the time they filed the SAC. See LRCiv 15.1.

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