United States District Court, E.D. California
civil rights action is before the court on plaintiffs'
four opposed motions. First, plaintiffs move to continue the
discovery cut-off. Second, plaintiffs move to amend their
Monell claims against defendant Placer
County. Third, plaintiffs move to amend their
negligent infliction of emotional distress
(“NIED”) and intentional infliction of emotional
distress (“IIED”) claims. Finally, plaintiffs move for
reconsideration of two of the magistrate judge's
court held a hearing regarding all four motions on November
4, 2016. Patrick Dwyer appeared for plaintiffs; Clayton Cook
appeared for defendants. ECF No. 91. For the following
reasons, the court GRANTS the motion to continue, GRANTS the
motion for leave to amend the Monell claims, DENIES
the motion for leave to amend the NIED/IIED claims, and
DENIES the motion for reconsideration.
case involves the custody of plaintiff N.D., a minor who was
three years old at the time period relevant to the operative
complaint. TAC ¶ 1. N.D.'s mother is plaintiff
Rachael Akey and N.D.'s father is Cameron Dupree,
who is not a party to this case. Id. ¶¶
2-4. Akey and Dupree were never married and currently live
apart. Id. ¶¶ 3-4. At the time of the acts
alleged in the complaint, Akey and Dupree had recently
concluded a lengthy custody dispute in Placer County Superior
Court. Id. ¶ 11. Under the resulting custody
order, N.D. was to live with Akey, and Dupree was to have
regular unsupervised visits with N.D. from Tuesday morning to
Wednesday morning each week and on alternating weekends.
Id. After the order went into effect, there was
continuing rancor between the parents, id.; in the
days leading up to the incident underlying the complaint,
Akey requested a court-ordered drug test of Dupree on
September 6, 2013, id. ¶ 16, and Dupree
requested a drug test of Akey on September 7, 2013,
id. ¶ 17.
morning of Thursday, September 12, 2013, Akey and her
husband, plaintiff Ryan Cornacchioli, took N.D. to school,
expecting to pick him up that afternoon. Id. ¶
19. Unbeknownst to Akey, defendant Placer County Family and
Children Services (“FCS”) had recently received a
report from N.D.'s school. Id. ¶ 20.
According to the report, N.D. had said that Cornacchioli
choked and threatened N.D. Id. Defendant social
worker Gloria Sutton, an FCS employee, began an investigation
on September 12, 2013 by going to N.D.'s school and
speaking with N.D. and N.D.'s teacher. Id.
¶ 21. Sutton then spoke with Dupree on the phone, who
confirmed that N.D. had mentioned the choking on September
10. Id. ¶ 21. On this basis, Sutton, with the
approval of defendant social worker Scott Myers, made the
decision to give full custody to Dupree. Id. ¶
22. At Sutton's request, Dupree picked up N.D. from
school on September 12. Id.
September 12, 2013, Sutton called Akey to discuss the
allegations of Cornacchioli's abuse of N.D. Id.
¶ 23. Because Akey put her phone on speaker mode,
Cornacchioli and Clayton heard the entire conversation, which
included sharing allegations that Cornacchioli had strangled
and threatened to kill N.D. Id. ¶¶ 23-24.
In response, Akey told Sutton that Cornacchioli was out of
town on military duty prior to September 10 and that N.D. had
not come back into their custody until after school on
September 11, and thus the allegations could not possibly be
true. Id. ¶ 24. Undeterred, Sutton explained
that Dupree retained full custody during the pending FCS
investigation. Id. Sutton further pressured Akey to
consent to an FCS order giving immediate and full custody to
Dupree; Akey declined. Id. ¶ 25. In a follow-up
conversation with Sutton's supervisor, Myers similarly
pressured Akey to consent to give custody to Dupree; Akey
again declined. Id. ¶ 26. Although Myers
explained the investigation would be over by September 17 and
there would be a reunification plan, id. ¶ 28,
N.D. remained in Dupree's sole custody until March 2014,
id. ¶ 22.
point to a series of alleged violations related to these
incidents, including FCS's improper removal of N.D.,
id. ¶¶ 15-28, and FCS's wrongful
reporting of Cornacchioli to the Department of Justice
(“DOJ”) Child Abuse Central Index. Id.
¶¶ 29-35. Plaintiffs point to the fact that
Cornacchioli was away on military duty at the time of these
incidents to show that the allegations against Cornacchioli
were demonstrably false and an improper basis for FCS's
removal of N.D. and reporting of Cornacchioli. Id.
¶ 24. Plaintiffs allege Sutton and Myers failed to
follow proper procedures in their investigation, id.
¶¶ 37-38, failed to make a good faith
investigation, id. ¶¶ 39-45, fabricated
evidence, id. ¶¶ 46-47, and suppressed
exculpatory evidence, id. ¶¶ 48-50.
Procedural Background and Plaintiffs' Claims
on these incidents, plaintiffs filed a Government Tort Claims
Act claim against defendants on March 11, 2014. Id.
¶ 36. The claim was rejected by the County of Placer and
then by the Judicial Council of California in April 2014.
filed the original complaint on October 12, 2014, the first
amended complaint on April 10, 2015, the second amended
complaint on September 30, 2015, and the operative third
amended complaint on April 6, 2016. Compl., ECF No. 1; First
Am. Compl. (“FAC”), ECF No. 20; Second Am. Compl.
(“SAC”), ECF No. 29; TAC. Plaintiffs filed each
of the amended complaints after the court granted
defendants' motions to dismiss, at least in part.
See Orders, ECF Nos. 18, 26, 37. Defendants answered
the operative third amended complaint on May 5, 2016. Am.
Answer, ECF No. 45.
third amended complaint includes twenty-six claims, fifteen
of which are against defendants under 42 U.S.C. § 1983
on the basis of alleged federal constitutional violations.
TAC ¶¶ 51-196. All three plaintiffs assert
procedural due process rights under the Fourteenth Amendment
against all defendants, while only Akey and N.D. assert a
substantive due process right to an unimpaired parent-child
relationship under the Fourth and Fourteenth Amendments
against all defendants. Id. The federal claims are
brought against Placer County based on a theory of municipal
liability under Monell. Id. ¶¶
51-64 (counts 1-2), 109-22 (counts 7-8), 167-74 (count 13).
also bring eleven state law claims against defendants on the
basis of alleged state constitutional violations.
Id. ¶¶ 197-255. Each of the state claims
asserts state constitutional violations analogous to the
federal claims. Id. The state claims are brought
against Placer County under a theory of vicarious liability.
Id. ¶¶ 211-16 (count 20), 234-38 (count
23), 251-55 (count 26).
noted, plaintiffs move the court to (1) continue the trial
date, (2) grant leave to amend their Monell claims,
(3) grant leave to amend their NIED/IIED claims, and (4)
reconsider two of the magistrate judge's rulings. In the
following sections, the court addresses each of
plaintiffs' motions in turn.
MOTION TO CONTINUE
court issued an initial pretrial scheduling order in March
2015, in which the court set a discovery cut-off of March 7,
2016, and set trial for September 19, 2016. Scheduling Order
March 24, 2015, ECF No. 19. Based on the parties'
subsequent stipulation, the court found good cause and
modified the initial scheduling order, extending discovery
until September 30, 2016 and resetting trial for April 3,
2017. Scheduling Order Feb. 10, 2016, ECF No.
36. On September 28, 2016, plaintiffs filed the current
motion to continue the trial date. Mot. Continue. Plaintiffs
request a 90- to 120-day extension of the discovery period,
with trial reset to after August 2017. Defendants oppose the
motion, but also agree to continue the trial date if the
court grants either of plaintiffs' pending motions to
amend the complaint. Opp'n Mot. Continue at 2.
pretrial scheduling order is designed to allow the district
court to better manage its calendar and to facilitate the
more efficient disposition of cases by settlement or by
trial. See Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 607-08 (9th Cir. 1992). A scheduling order may only
be changed with the court's consent and for “good
cause.” Fed.R.Civ.P. 16(b)(4). A scheduling order is
not “a frivolous piece of paper, idly entered, which
can be cavalierly disregarded by counsel without
peril.” Gestetner Corp. v. Case Equip. Co.,
108 F.R.D. 138, 141 (D. Me. 1985). On the other hand, the
“good cause” standard requires less than the
“manifest injustice” test used to modify a final
pretrial order. See Fed. R. Civ. P. 16(e); see
also Fed. R. Civ. P. 16, 1983 Advisory Committee Notes
(“Since the scheduling order is entered early in the
litigation, this standard seems more appropriate than a
‘manifest injustice' or ‘substantial
hardship' test.”). When litigants request changes
to a scheduling order, the court's inquiry focuses on
their diligent efforts to comply. See Johnson, 975
F.2d at 609. A district court has “broad
discretion” to grant or deny a continuance. United
States v. Flynt, 756 F.2d 1352, 1358 (9th Cir. 1985).
argue plaintiffs' motion is subject to denial on the
simple grounds that it does not include an express Rule 16
request to modify the scheduling order. Opp'n Mot.
Continue at 3 (citing Johnson, 975 F.2d at 608-09).
Defendants raise this same argument in response to
plaintiffs' motion to amend the complaint, discussed
below. For the reasons discussed in that section, the court
declines to deny plaintiffs' motion to continue on this
basis and proceeds to determine whether plaintiffs establish
good cause to continue the trial date.
base their request to amend the scheduling order on two
compelling areas in which they say further discovery is
needed. The court finds these arguments persuasive.
Original Case File
argue, as of the time of their filing, the original case file
from FCS has not been produced in full and they need
additional time to follow up on the absence of these
essential documents. Mot. Continue at 7. More specifically,
plaintiffs have not received a signed copy of the
Investigative Narrative, which plaintiffs describe as
“the central document in the case” and the key to
determining defendants' reasons for substantiating the
abuse claim against Akey and Cornacchioli. Id.
Plaintiffs also have not received a signed copy of the
Structured Decision Making (“SDM”) Risk
Assessment Form, a document plaintiffs argue would provide
the basis for removing N.D. from plaintiffs. Id. at
7-8; see also Dwyer Decl. Ex. 7, ECF No. 69-1
(unsigned SDM Risk Assessment form).
plaintiffs filed their motion, and after the close of
discovery, defendants found and turned over both of these
signed documents. Opp'n Mot. Continue at 7. Defendants
explain they believed the documents were lost or destroyed
until conducting a recent, unrelated search of a county
employee's desk; they acknowledge the timing of this
production is “unfortunate.” Id. at 7-8.
Still, defendants argue plaintiffs received unsigned copies
of these documents, identical in all respects but for the
missing signatures, more than two years ago and plaintiffs
previously could have determined when the documents were
signed by sending written discovery or conducting
depositions. Id. at 8-9.
court finds the relatively recent production to be a
compelling reason to continue the discovery period.
“[C]ourts often find good cause when the motion to
amend the scheduling order is based upon new and pertinent
information.” Lyon v. U.S. Immig. & Cust.
Enf't, 308 F.R.D. 203, 216 (N.D. Cal. 2015);
see, e.g., Defazio v. Hollister, Inc., CIV
04-1358 WBS GGH, 2008 WL 2825045, at *1 (E.D. Cal. July 21,
2008) (finding good cause to amend the complaint because new
allegations stemmed from materials recently disclosed through
discovery); cf. Johnson, 975 F.2d at 609 (finding no
good cause to extend a scheduling order deadline where based
on information available to movant throughout the suit).
Here, defendants' signatures on these documents speak to
their authenticity and completeness, as well as the relative
timing in the sequence of events leading to the removal of
N.D from Akey. Thus, the fact that plaintiffs did not receive
signed versions of these documents until after defendants
Sutton and Myers were deposed, and until after the close of
the discovery period, forms a strong basis for
plaintiffs' motion here.
argue they need more time to review the Placer County FCS
logbook because there exist “conflicting evidence and
‘mysterious' circumstances that need more discovery
to resolve.” Id. at 12. More specifically,
plaintiffs allege they cannot yet determine whether FCS ever
reported plaintiff Cornacchioli to the California Department
of Justice's (“DOJ”) Child Abuse Central
Index (“CACI”), which is the basis for
Cornacchioli's procedural due process claims.
Id. at 9-10, 12; TAC ¶¶ 167-96, 239-50.
Although defense counsel stated in October 2014 that he
believed FCS never reported Cornacchioli, a relevant
form-Form 8583- contains a DOJ special report number, which
plaintiffs assert would only be created after a case is
reported to the DOJ. Id. at 12-13. Defendants'
recent depositions confirm that FCS was required to report
Cornacchioli to the DOJ and Sutton stated he knew of no other
case in which FCS failed to report to the DOJ when so
required. Id. at 13-14. Plaintiffs ask for more time
to review the FCS logbooks documenting reports to the DOJ as
well as time to depose clerical staff responsible for
submitting the reports. Id.
make two principal arguments in response to plaintiffs'
stated reasons for requesting extra time to analyze the FCS
logbook. First, defendants implicitly argue plaintiffs'
request is moot, because Cornacchioli is no longer listed on
the CACI index. Id. at 6. Second, defendants argue
they have already shared relevant portions of the FCS
logbooks during a recent deposition and the logbook reveals
Cornacchioli was not reported by FCS. Id. at 6.
the court finds plaintiffs' argument the more persuasive.
Plaintiffs' allegation that FCS reported Cornacchioli to
the DOJ forms the basis of all of Cornacchioli's claims.
See TAC (claims 13-15, 24-26). Plaintiffs thus point
out that a significant factual question, as recent
depositions of Sutton and Myers confirm, has yet to be
definitively answered. The Form 8583, which includes a
special report number in the box labeled “For DOJ Use
Only, ” supports a justifiable inference that
Cornacchioli was reported to the DOJ. Dwyer Decl., Ex. 4, ECF
No. 69-1. Defendants are incorrect in implying that whether
Cornacchioli was ever reported to the DOJ is irrelevant given
that he is no longer listed on the DOJ's index. As the
third amended complaint makes clear, Cornacchioli is not only
asking for injunctive relief in the form of removal from the
CACI index, TAC ¶ 174, but he is also asking for damages
caused by the loss of earning capacity, reputational harm,
and the severe emotional and mental distress all allegedly
caused by being reported in the first place. Id.
¶ 172. Whether Cornacchioli was reported to the DOJ, and
not just whether he continues to be listed on the CACI index,
continues to be a question central to Cornacchioli's
claims. The FCS logbook page that defendants produced during
a recent deposition may help to answer that question, as
defendants argue, but it does not definitely resolve it.
Plaintiffs' second argument provides a persuasive basis
for granting their motion.
argue that, even if recent depositions and discovery provide
a basis for additional discovery, plaintiffs have not shown
why they did not conduct the depositions and discovery
sooner. Opp'n Mot. Continue at 3-5. Defendants point to a
nine-month window between plaintiffs' initial written
discovery and their more recent “flurry” of
activity, which included four sets of document requests and
eight depositions in the final two months of the original
discovery period. Id. at 4.
reply adequately addresses these concerns. See
generally Reply Mot. Continue. From the start,
plaintiffs intended to focus their discovery only on their
Monell claims because the second custody case in
Placer County Superior Court had already allowed serving of
subpoenas, taking of depositions, and a full trial regarding
plaintiffs' other claims here. Id. at 3. Because
the court dismissed the Monell claims in
plaintiffs' original and first amended complaint,
plaintiffs could not proceed with the corresponding
Monell discovery until after they filed their second
amended complaint in September 2015. Reply Mot. Continue at
4. Defendants impliedly accepted the sufficiency of the
Monell claims in plaintiffs' second amended
complaint when, in October 2015, they moved to dismiss other
claims in the second amended complaint but did not challenge
the Monell claims. See generally Mot.
Dismiss SAC, ECF No. 30; Reply Mot. Continue at 4. Plaintiffs
filed Monell-related discovery later in October
2015, and, after defendants' initial production,
plaintiffs moved to compel production of documents related to
the County's other investigations. See Mot.
Compel, ECF No. 39. The magistrate judge granted in part
plaintiffs' motion to compel in May 2016, and required
defendants to produce case files from other investigations.
Order May 5, 2016, ECF No. 47. Defendants acknowledge
“it did take some time” to produce responsive
documents, Opp'n Mot. Continue at 4, and plaintiffs
assert they did not receive the case files until August 2016.
Reply Mot. Continue at 4. It was reasonable for plaintiffs to
wait to depose Sutton and Myers, the County employees
involved in the investigation in this case, until plaintiffs
had more information regarding other County investigations,
because plaintiffs' claims are tied to County policies
and practices that Sutton and Myers allegedly followed.
Plaintiffs' depositions of Sutton and Myers on September
12-13, 2016, and current motion filed on September 28, 2016,
were therefore timely.
reasons stated above, plaintiffs' first and second
reasons for requesting to amend the scheduling order provide
a sufficient basis for finding “good cause” here.
The court need not address plaintiffs' other arguments
supporting their request. Plaintiffs' motion is GRANTED.
parties originally submitted competing positions on
modification of the scheduling order. Compare Mot.
Continue at 1, 6, with Opp'n Mot. Continue at 2.
At the court's instruction, the parties have now
submitted a joint statement after hearing to address their
positions regarding the appropriate scope of discovery in
light of the documents recently produced. Jnt. Statement, ECF
No. 92. After considering the parties' positions as to
the appropriate scope of additional discovery, the court
extends the fact discovery period without limiting the scope
beyond the parameters established by the complaint and
answer. As a result, the court need not address at this
juncture plaintiffs' individual requests for additional
schedule for the case, ECF Nos. 19, 36, is modified as
follows: the period for discovery shall be extended to July
31, 2017; disclosure of expert witnesses is due by September
1, 2017 and supplemental disclosure of expert witnesses is
due by September 22, 2017; the period for expert discovery
shall be completed by September 29, 2017; all dispositive
motions shall be heard by November 3, 2017; the Final
Pretrial Conference is reset for February 23, 2018 at 10:00
a.m., with the Joint Pretrial ...