The Estate of Paul Browning v. Las Vegas Metropolitan Police Department

• Court: District Court, D. Nevada
• Decided: May 10, 2023
• Docket: 2:20-cv-01381
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** The Estate of Paul Lewis Browning, et al., 4 2:20-cv-01381-KJD-VCF Plaintiffs, 5 ORDER vs.

6 Plaintiff’s Motion for Leave to Amend Complaint 7 Las Vegas Metropolitan Police Department, et al, [ECF No. 64] Defendants. 8

9 Plaintiffs filed a motion for leave to amend the complaint. ECF No. 64. I grant the motion. 10 Plaintiffs have seven days to file their amended complaint. 11 I. Background 12 Paul Lewis Browning was exonerated in 2020 after having been forced to spend more than three 13 decades on Nevada’s death row for a robbery and murder that he did not commit. On July 24, 2020, 14 plaintiff filed a civil rights complaint. ECF No. 1. Paul Browning passed away on March 23, 2021. ECF 15 No. 36. On June 28, 2021, I granted plaintiff’s motion to substitute the Estate of Paul Browning for 16 plaintiff and I granted leave to file an amended complaint to reflect this change. ECF No. 42. On June 17 29, 2021, plaintiff filed a first amended complaint. ECF No. 43. On June 3, 2022, I granted the parties’ 18 fourth request for stipulation to extension of time for discovery. ECF No. 57. Discovery in this case 19 closed on October 5, 2022. Id. On January 6, 2023, the LVMPD defendants filed their motion for 20 summary judgment. ECF No. 61. On March 1, 2023, plaintiff filed the instant motion, seeking leave to 21 amend the complaint. ECF No. 64. The briefing schedule regarding the summary judgment motion is 22 stayed pending resolution of the plaintiff’s instant motion. ECF No. 68. 23 Plaintiff argues that it should be allowed to amend the complaint at this late stage to bring claims 24 pursuant to the Nevada Constitution because there has been a recent change in the law pursuant to the 25 1 1 Supreme Court of Nevada’s recent decision in Mack v. Williams, 138 Nev. Adv. Op. 86, 522 P.3d 434 2 (2022) regarding violations of the Nevada Constitution. ECF No. 64. Defendants argue that the motion 3 to amend is untimely and must be denied. ECF No. 69. Defendants argue that the plaintiff could have 4 brought claims pursuant to the Nevada Constitution prior to the Mack decision but for some inexplicable 5 reason did not. Id. Defendant also argues that the proposed amendment would be futile. Id. Plaintiff 6 argues that good cause exists to amend now because it was diligent in seeking amendment after the 7 Supreme Court decided Mack and that before Mack there was no meaningful distinction between 8 pleading state and federal constitutional claims. ECF No. 72. 9 II. Discussion 10 “[A] party may amend its pleading only with the opposing party's written consent or the court's 11 leave.” Fed. R. Civ. P. 15(a)(2). The Ninth Circuit has found that a court may deny as untimely a 12 motion filed after the scheduling order cut-off date where no request to modify the order has been made. 13 U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir. 1985). The 14 standard for good cause under Rule 16(b) requires the court to evaluate the movant’s diligence in 15 attempting to meet the order’s requirement and seeking to amend. Johnson v. Mammoth Recreations, 16 975 F.2d 604, 607 (9th Cir. 1992). “Five factors are taken into account to assess the propriety of a 17 motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of 18 amendment, and whether the plaintiff has previously amended the complaint.” Johnson v. Buckley, 356 19 F.3d 1067, 1077 (9th Cir. 2004). 20 "Denial of leave to amend on this ground [futility] is rare. Ordinarily, courts will defer 21 consideration of challenges to the merits of a proposed amended pleading until after leave to amend is 22 granted and the amended pleading is filed." Netbula, LLC v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. 23 Cal. 2003). “Deferring ruling on the sufficiency of the allegations is preferred in light of the more liberal 24 standards applicable to motions to amend and the fact that the parties' arguments are better developed 25 2 1 through a motion to dismiss or motion for summary judgment.” Steward v. CMRE Fin'l Servs., Inc., 2 2015 U.S. Dist. LEXIS 141867, 2015 WL 6123202, at 2 (D. Nev. Oct. 16, 2015); citing to In re 3 Dynamic Random Access Memory (DRAM) Antitrust Litig., 536 F. Supp. 2d 1129, 1135-36 (N.D. Cal. 4 2008). 5 I find that there was no bad faith when plaintiff did not anticipate the change in state law 6 announced by the Nevada Supreme Court’s Mack v. Williams ruling, affirmatively finding an implied 7 “right of action for money damages,” for violations of the Nevada Constitution. While it is true that 8 plaintiff could have brought claims pursuant to the Nevada Constitution prior to the Mack decision, 9 plaintiff should not be prejudiced for drafting a precise and targeted complaint, based on the law at the 10 time. The alternative would incentivize plaintiffs to always take a “kitchen sink” approach of listing 11 every conceivable claim, even if the law or the facts do not provide strong support for bringing the 12 claim. Plaintiff seeks leave to amend only because of a recent change in law, so the good faith factor 13 weighs in plaintiff’s favor. 14 While it is true that the amendment and discovery deadlines have long passed, this is an unusual 15 case given the recent change in law. I find that plaintiff diligently sought leave to amend, without undue 16 delay, after the Supreme Court decided the Mack case. The defendant will be slightly prejudiced here 17 since they already filed their dispositive motion. Since the new claims are like the federal claims, and 18 the facts of the case remain the same, this prejudice is minimized in this particular case, under this set of 19 facts. Since futility would be better addressed through a motion to dismiss or motion for summary 20 judgment, and a finding of futility is rare, I do not reach the issue of futility. The plaintiff only amended 21 the complaint one other time shortly after Paul Browning’s untimely death, so this factor weighs in 22 plaintiff’s favor. 23 Accordingly, 24 I ORDER that plaintiff’s motion for leave to amend complaint (ECF No. 64) is GRANTED. 25 3 1 I FURTHER ORDER that plaintiffs have until Wednesday, May 17, 2023 to file the amended 2 complaint. 3 I FURTHER ORDER that the parties have until Wednesday, May 24, 2023 to file a joint 4 stipulation, if they are able to agree, setting new deadlines and a new scheduling order. If the parties are 5 unable to agree, then the plaintiff has until Wednesday, May 24, 2023, to file a motion regarding the 6 scheduling order. 7 IT IS SO ORDERED. 8 DATED this 10th day of May 2023. _________________________ 9 CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4