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Ae v. Yadira Portillo

February 18, 2011

AE,
PLAINTIFF,
v.
YADIRA PORTILLO, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING DEFENDANTS' MOTION TO FILE THIRD-PARTY COMPLAINT WITHOUT PREJUDICE

(Document 89)

ORDER REQUIRING PLAINTIFF TO SERVE DEFENDANTS WILLIAMS, PUENTES AND CEBALLOS WITHIN 60 DAYS

Defendants Yadira Portillo, Courtney Wampler and CWA Felix ("Moving Defendants") filed the instant motion to file a Third-Party Complaint on December 10, 2010. The motion was heard on February 18, 2011, before the Honorable Dennis L. Beck, United States Magistrate Judge. Judy Chapman appeared on behalf of Moving Defendants. Charles Chapman appeared on behalf of Plaintiff AE. Michael Stump appeared on behalf of proposed Third-Party Defendants Family Builders Foster Care, Inc.

BACKGROUND

Plaintiff AE, through his Guardian Ad Litem, Maribel Hernandez, filed the instant civil rights action on December 17, 2009. Plaintiff initially named the County of Tulare, Tulare County Health and Human Services, Tulare County Child Welfare Services, County Employees Celeste Abarca, Patricia Negrette, Yadira Portillo, Prudence Morris, Helen Rue, Courtney Wampler, CWA Felix, Heidi Williams, Dr. Soto, Adrian Marquez, Tiffany Breen, Leticia Quezada, Marie Focha and Miriam Sallan, and Family Builders Foster Care, Inc., as Defendants. The complaint also named Defendant Does 1 to 100, with Doe 51 identified as Plaintiff's former foster father and Doe 52 as Plaintiff's former foster mother. Plaintiff alleged causes of action for (1) deliberate indifference to his risk of harm; (2) negligence pursuant to California Government Code sections 815.2, 815.4 and 815.6; (3) defamation and slander against Family Builders Foster Care; and (4) invasion of privacy by publication of private facts against Family Builders Foster Care.

According to the complaint, in September 2008, Defendants took legal and physical custody of Plaintiff. Plaintiff was transferred to Defendant Family Builders Foster Care ("Family Builders") and/or a foster family or foster parents. Plaintiff alleges that he was physically and sexually assaulted by a 17-year-old boy ("Older Boy") in the same foster home and contends that Defendants knew or should have known that it was unreasonable and recklessly dangerous to place him in the foster family with the Older Boy.

On February 26, 2010, Plaintiff filed a First Amended Complaint ("FAC") which added Tulare Youth Service Bureau as a Defendant. Tulare Youth Service Bureau and Defendant Adrian Marquez were excluded from the first cause of action for deliberate indifference.

After numerous motions to dismiss, the County of Tulare and numerous individual Defendants were dismissed with prejudice. Plaintiff was allowed leave to amend certain claims against the remaining Defendants, including Family Builders.

Plaintiff filed his Second Amended Complaint on April 30, 2010. Pursuant to the parties' stipulation, Plaintiff filed a Third Amended Complaint on May 14, 2010. Neither the Second nor Third Amended Complaint included Family Builders as a Defendant.

On August 9, 2010, Family Builders requested formal dismissal with prejudice of the deliberate indifference claim and negligence claim based on Plaintiff's failure to name Family Builders in the Second or Third Amended Complaints. The Court granted the request on August 10, 2010, and dismissed Family Builders from the action.

The Court issued its Scheduling Conference Order on August 13, 2010. Non-expert discovery ends on August 5, 2011, the dispositive motion deadline is October 24, 2011, and trial is set for March 19, 2012.

The Moving Defendants filed this motion for leave to file a Third-Party Complaint to name Family Builders, Alejandro Puentes and Sandra Ceballos as ...


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