Opinion
2:10-CV-874 JCM (PAL).
February 17, 2011
ORDER
Presently before the court is plaintiffs Manuel and Jacqueline Mairs' renewed motion for leave to file a second amended complaint based on newly discovered evidence, dated December 5, 2010 (doc. #36). Defendants Robert Beckett and Frank Toppo filed an opposition to plaintiffs' motion (doc. #41) as did defendant Nye County (doc. #43). Also before the court is defendant Nye County's notice of pending motion to dismiss or, alternatively, to consolidate a parallel action, dated December 12, 2010 (doc. # 37; previously doc. #5). Plaintiffs filed a response (doc. #46; previously doc. #8) and Nye County filed a reply (doc. #48; previously doc. #12). Lastly before the court is defendant Robert Beckett's motion to dismiss or for judgment on the pleadings pursuant to Federal Rule Civil Procedure 12 (doc. #45; previously doc #19). Plaintiffs filed a response (doc. # 51) and defendant Beckett filed a reply (doc. #54).
Case No. 2:10-cv-01290-GMN-PAL
I. RELEVANT FACTS AND PROCEDURAL HISTORY
Plaintiffs filed two separate suits, one in federal court and one in state court. Plaintiffs' first complaint was filed pursuant to 42 U.S.C. § 1983 in United States District Court, District of Nevada, Case No. 2:10-cv-00874-JCM-PAL (hereinafter "874 case") on June 7, 2010. ( See doc. #1). The 874 complaint names Nye County, Robert Beckett and Frank Toppo as defendants. ( Id.). Plaintiffs filed an amended complaint in the 874 case on June 29, 2010. ( See doc. #8).
Plaintiffs then filed a second suit in the Fifth Judicial District Court, Nye County, Nevada Case No. CV 30433. This case was removed to the United States District Court, District of Nevada, Case No. 2:10-cv-01290-GMN-PAL (hereinafter "1290 case") on July 30, 2010. The 1290 complaint names Nye County, Robert Beckett and Frank Toppo as defendants. ( See doc. #1). The complaint in the 1290 case is identical to the amended complaint filed in the 874 case. ( See doc. #8).
Plaintiffs then filed a motion for leave to file a second amended complaint in the 874 case (doc. #21) and a motion to stay ruling on defendants' motion to dismiss (doc #5) pending resolution of the motion to file a second amended complaint. On November 4, 2010, this court held a noticed hearing on plaintiffs' motion to file a second amended complaint and subsequently issued an order denying plaintiffs' motion (doc. #35).
Plaintiffs now renew their motion for leave to file a second amended complaint based on newly discovered evidence (doc. #36). Save a newly attached declaration, plaintiffs' motion is identical to their first motion to file a second amended complaint that this court denied ( compare doc. #21 and doc. #36, see also doc. #35 denying plaintiff's motion). Plaintiffs' motion requests the following changes: (1) amend characterization of the defendants, official versus individual; (2) add two defendants: Thomas J. Gibson (attorney for defendant Frank Toppo) and his law firm, Gibson Keuhn, LLP; and (3) add a cause of action for injunctive relief.
On December 2, 2010, plaintiffs obtained the sworn declaration of Amy Jo Pearsall, Assistant City Attorney for the City of Federal Way, Washington. (Doc. #36, Exhibit A-1). Ms. Pearsall recounts a phone conversation that took place "[i]n the summer of 2010" with a female caller who indicated that she was calling from the office of a Thomas J. Gibson — attorney for defendant Frank Toppo. ( Id.). The caller requested a transfer of files on a then non-existent "lawsuit or investigation" against defendant Manuel Mairs that was supposedly under way in Nye County, Nevada. ( Id.). Plaintiffs argue that this declaration is sufficient to overcome this court's previous denial of plaintiffs' request to add Mr. Gibson and his law firm pursuant to the pleading standard required under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). ( See doc. #35).
Finally, on January 10, 2011, the Honorable Gloria M. Navarro issued a judicial order — contingent on the approval of this court (doc. #22 in the 1290 case) — affirming defendant Nye County's motion to consolidate the 1290 case and the 874 case, with the 874 case serving as the base case.
II. PLAINTIFFS' RENEWED MOTION FOR LEAVE TO AMEND
As a threshold matter, plaintiffs' addition of unidentified "Roe" and "Doe" defendants (see plaintiffs' proposed amended complaint, doc. #36, Exhibit B) is improper. See Buckheit v. Dennis, 713 F.Supp. 2d 910, 918 n. 4 (N.D. Cal. 2010) (noting the tactic is generally not permitted in federal court) (citing Bogan v. Keene Corp., 852 F.2d 1238, 1239 (9th Cir. 1988); see also Fifty Assocs. v. Prudential Ins. Co., 446 F.2d 1187, 1191 (9th Cir. 1970); McMillan v. Dep't of the Interior, 907 F.Supp. 322, 328 (D. Nev. 1995) (holding there is no provision in the federal rules permitting the use of fictitious defendants).
A court may freely grant leave to amend where justice so requires. FED. R. CIV. P. 15(a)(2). The power to grant leave to amend is entrusted to the discretion of the district court. See William v. Richfield Co., 588 F.3d 659, 669 n. 8 (9th Cir. 2009); see also Manzarek v. St. Paul Fire Marine Ins. Co., 519 F.3d 1025, 1035 (9th Cir. 2009) (a court can deny a motion to amend if it can articulate a reason for its denial).
Under the broad discretion given to this court under the Federal Rule of Civil Procedure 15(a)(2), plaintiffs' request to amend characterization of defendants Robert Beckett and Nye County is granted. Additionally, plaintiffs' request to add a claim for injunctive relief against Frank Toppo is granted. However, plaintiffs' request to add Mr. Gibson and his law firm as defendants is denied for the following reasons.
Plaintiffs' argument in favor of adding Mr. Gibson and his law firm as defendants herein hinges on the newly proffered declaration of Ms. Pearsall. However, the decision to add Mr. Gibson is not without consequence to defendant Toppo; the effect of adding Mr. Gibson and his law firm as defendants would compel the removal of Mr. Gibson as defendant Frank Toppo's counsel. Ultimately, Ms. Pearsall's declaration is not sufficient to ensnare Mr. Gibson as a defendant and deprive Mr. Toppo of his counsel because Ms. Pearsall's declaration only confirms that anyone could have contacted her and claimed to be from Mr. Gibson's office.
The removal of opposing counsel requires more than a nebulous allegation (substantiated by declaration or not) that an unknown caller, who claimed she was calling from the office of opposing counsel, requested a "file transfer" concerning plaintiff. Holding otherwise risks opening the door to numerous requests for removal of counsel based on similarly vague allegations. Even taking into account Ms. Pearsall's newly acquired declaration, plaintiffs' proposed addition of Mr. Gibson and his law firm to the suit fails to "raise a right to relief above the speculative level" and is denied. Twombly, 550 U.S. at 545.
III. DEFENDANT NYE COUNTY'S MOTIONS TO DISMISS OR, ALTERNATIVELY, TO CONSOLIDATE
This court adopts Judge Navarro's order that defendant Nye County's motion to dismiss be denied and Nye County's motion to consolidate the 1290 case and the 874 case be granted, with the 874 case to serve as the base case ( see doc. #22 in the 1290 case).
IV. DEFENDANT ROBERT BECKETT'S MOTION TO DISMISS OR FOR JUDGMENT ON THE PLEADINGS PURSUANT TO RULE 12
Pursuant to this court's decision to allow plaintiffs' leave to amend with regard to characterization of defendant Robert Beckett, defendant's motion to dismiss or for judgment on the pleadings pursuant to Federal Rule Civil Procedure 12 is denied as moot at this juncture. Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiffs' renewed motion for leave to file a second amended complaint (doc. #36) is GRANTED in part and DENIED in part. Plaintiffs may re-characterize their identification of defendant Robert Beckett to include suit against him in his "individual and official capacities," and plaintiffs may add a cause of action for injunctive relief against defendant Frank Toppo. However, plaintiffs may not add Mr. Gibson or his law firm as defendants herein and Does 1-100 are dismissed from this action.
IT IS FURTHER ORDERED that defendant Nye County's motions to dismiss (doc. #37) is DENIED; however, the defendants' motion to consolidate (doc. #37) is GRANTED. Case no. 2:10-cv-00874-JCM-PAL and 2:10-cv-01290-GMN-PAL are hereby consolidated, with case no. 2:10-cv-00874-JCM-PAL serving as the base case. On January 10, 2011, the Honorable Gloria M. Navarro issued an identical order contingent upon "Judge Mahan's approval" ( see doc. #22; 2:10-cv-01290-GMN-PAL). Approval is hereby given.
IT IS FURTHER ORDERED that defendant Robert Beckett's motions to dismiss or for judgment on the pleadings pursuant to Federal Rule Civil Procuedure 12 (doc. #45) is DENIED as moot.
DATED February 17, 2011.