United States District Court, N.D. California
STEPHEN E. EBERHARD, Plaintiff,
CALIFORNIA HIGHWAY PATROL, et al., Defendants.
ORDER RE MOTION TO AMEND SECOND AMENDED COMPLAINT, MOTION TO AMEND THIRD AMENDED COMPLAINT, AND MOTION TO DISMISS THIRD AMENDED COMPLAINT Re: Dkt. Nos. 73, 98, 106
JAMES DONATO, District Judge.
Plaintiff Stephen Eberhard has filed two motions: a motion to amend the second amended complaint to allege that California Highway Patrol Captain James T. Epperson violated his First, Fourth, and Fourteenth Amendment rights, Dkt. No. 73; and a motion to amend the third amended complaint to add Sergeant Steven Lott as a defendant for allegations of First and Fourteenth Amendment violations and false arrest and imprisonment, Dkt. No. 98. Defendant Caltrans moves to dismiss the false arrest and false imprisonment allegations against it. See Dkt. No. 106.
The procedural and factual details of this case are set out at length in the Court's prior orders granting motions to dismiss and will not be repeated here. See Dkt. Nos. 49, 79. The high-level summary is that Stephen Eberhard is a photojournalist for The Willits News ("TWN") who covered the Willits Bypass Project, a highway construction project near Willits, California, that has attracted a number of protests. He alleges that several California Highway Patrol officers engaged in a campaign of harassment against him, which culminated in his arrest by the CHP on July 23, 2013 during a protest at the project site. He was released later that day, and on April 24, 2014, he sued the arresting officers, the California Highway Patrol, the California Department of Transportation, California Highway Patrol Chief Bridget Lott, and California Department of Transportation District 1 Director Charlie Fielder. The allegations against Lott and Fielder were based on a letter to the editor they sent to various newspapers defending their respective agencies' roles in the arrest, and in Lott's case, another letter that she wrote to the Society of Environmental Journalists defending the CHP's conduct.
Caltrans, Fielder, and Lott moved to dismiss Eberhard's First and Fourteenth Amendment claims and his state law false imprisonment claims, and the Court granted the motion without prejudice to replead. Dkt. No. 49. Eberhard filed a second amended complaint with similar allegations, which the same three defendants again moved to dismiss. Dkt. Nos. 60, 67. Before the Court ruled on the motion, Eberhard filed a motion to file a third amended complaint with additional allegations against Caltrans, Lott, Fielder, and CHP Captain James T. Epperson, for allegedly writing the letter Lott sent to the Society for Environmental Journalists. Dkt. No. 73. The Court granted the motion to dismiss with a final opportunity to replead, denied the motion to file a third amended complaint with respect to Caltrans, Lott, and Fielder, and did not rule on the new allegations against Epperson until briefing on Eberhard's motion to amend Dkt. No. 79.
Eberhard then filed a Third Amended Complaint, dropping his claims against Lott and Fielder and reasserting only a single state law false arrest and imprisonment claim against Caltrans. See Dkt. No. 97. Eberhard simultaneously filed a motion to amend his third amended complaint to add Sergeant Steven Lott as a defendant. See Dkt. No. 98.
On the defense side, Caltrans moved to dismiss the sole remaining claim against it - the state law false arrest claim in Eberhard's third amended complaint. See Dkt. No. 106. All of the motions have been fully briefed.
I. MOTION TO ADD ALLEGATIONS AGAINST CPT. EPPERSON
Captain Epperson is the captain in charge of the Ukiah division of the CHP. Dkt. No. 73-1 ¶ 9. Eberhard wants to amend his complaint to allege that Epperson wrote the letter to the Society of Environmental Journalists that Chief Lott signed. Id. ¶ 75. The Court has already determined that Chief Lott's alleged involvement with the letter was insufficient to state First Amendment retaliation and due process claims against her, see Dkt. No. 49 at 4:5-12:1, Dkt. No. 79 at 4:1-7:25, and the proposed claims against Epperson fail for the same reasons. Because "[l]eave to amend need not be given if a complaint, as amended, is subject to dismissal, " Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989), the Court denies Eberhard's motion to amend his complaint to add allegations against Epperson.
II. MOTION TO ADD SGT. LOTT AS A DEFENDANT
According to Eberhard, Sgt. Steven Lott was the on-duty sergeant on the day of Eberhard's arrest. See Declaration of Duffy Carolan ¶ 2, Dkt. No. 98. Eberhard concedes that Lott was not on the site at the time of the arrest, but says he "arrived shortly thereafter" and "assum[ed] the role of incident commander, " determined that Eberhard had trespassed, and declined to intervene or to order that Eberhard be cited and released rather than incarcerated. Id. Eberhard also alleges that a recording features Lott saying, "I think it sends the wrong message when someone's in custody then release him like a little parakeet. No way was I going to send the wrong message to the officers there... not going to send the wrong message to the protesters...." See Dkt. No. 98-1 ¶ 76.
The deadline for adding parties under the scheduling order was November 14, 2014, see Dkt. No. 45. Consequently, Eberhard must show that there is "good cause" to modify the order to allow Lott to be added as a defendant. Fed.R.Civ.P. 16(b)(4); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Eberhard argues that good cause exists because he did not know about Sgt. Lott's role until his deposition on April 25, 2015, and because it took him some time to review the recording, which CHP produced on February 4, 2015. Carolan Decl. ¶ 4.
The problem with this argument is that most of the essential facts that Eberhard relies on in arguing that Sgt. Lott should be added as a defendant were known to him before the deadline to add parties. In his first amended complaint, filed July 22, ...