Steinmeir v. County of San Diego

          ORDER DENYING PLAINTIFF'S MOTION TO AMEND THE COMPLAINT

          JEFFREY T. MILLER UNITED STATES DISTRICT JUDGE

         In this excessive force claim under 42 U.S.C. § 1983, Plaintiff Suzanne Steinmeier (“Plaintiff”) moves to amend her Complaint by naming California Highway Patrol (CHP) Officers Jason Hughes and Ralph Ketcher as Doe Defendants 3 and 4, despite the expiration of the deadline to amend her Complaint in the court's Scheduling Order. (Doc. No. 35.) She also seeks to amend her sole cause of action currently before the court and add a second count based on police bystander liability and conspiracy. (Doc. No. 38.) For the below reasons, the motion is DENIED.

         I. BACKGROUND

         The parties do not dispute that on the evening of April 27, 2015, Plaintiff and her wife, Michelle Rivera (“Rivera”), led officers from the San Diego County Sherriff's Department and the California Highway Patrol (CHP) on a vehicle chase. A Sheriff's Department helicopter joined the pursuit. Plaintiff and Rivera ultimately abandoned the vehicle and fled on foot into a dark riverbed. Multiple officers, including two Sheriff's Deputies and a police dog, pursued the suspects into the riverbed. Police eventually located Plaintiff and Rivera and arrested them. During the arrest, Rivera was bit by the police dog and Plaintiff was struck multiple times by police. Sheriff's Deputies Frank Leyva (the dog handler) and Kenneth Edwards admit to striking Plaintiff.

         On April 26, 2016, Rivera, but not Plaintiff, filed an excessive force claim against Deputy Leyva and others in the U.S. District Court for the Central District of California. See Rivera v. Cty. of San Diego, Case No. ED CV 16-795 PSG (KSx), 2017 WL 5643151, at *1 (C.D. Cal. Nov. 14, 2017). The case was based on the same incident, but involved different uses of force, i.e. a police dog bit Rivera and police officers struck Plaintiff. The case went to trial in June 2017 and the jury returned a verdict in favor of the defendants. Id. The verdict was subsequently affirmed. 771 Fed.Appx. 436, 437 (9th Cir. 2019).

         On March 27, 2017, Plaintiff filed suit in state court against Deputies Leyva and Edwards, as well as Doe Defendants 1 through 10.^[1] (Doc. Nos. 1 at 2, 1-5 at 4.) The Complaint described Does 1 through 10 as law enforcement officers who accompanied Deputies Leyva and Edwards into the riverbed, (Doc. No. 1-5 at 6-7), and who observed excessive force being used against Plaintiff and failed to intervene, (id. at 15-16). Does 1 through 5 were also described as officers who, in addition to Deputies Leyva and Edwards, used force against Plaintiff. (Id. at 9.) At the time of filing her suit, Plaintiff knew that CHP Officers were involved in the vehicle pursuit, but Plaintiff contends she was unaware that CHP Officers used force against her because police reports only revealed that Sheriff's Deputies used forced. (Doc. No. 35 at 3.) According to Plaintiff, the CHP reports in her possession at the time indicated that the only CHP Officers involved were Brian Keene and Willis Whited. (Id. at 4.)

         On July 16, 2017, Plaintiff filed her First Amended Complaint. (Doc. No. 1-5 at 119-21.) On December 26, 2017, Plaintiff filed her Second Amended Complaint. (Doc. No. 1-6 at 49.) The Second Amended Complaint is the version currently before the court, although it was later amended a third time to name CHP Officers Keene and Whited as Does 1 and 2. (Doc. Nos. 5-2, 5-3.)

         By June 13, 2018, Plaintiff possessed an emergency room record in which unidentified CHP Officers reportedly told Plaintiff's emergency room doctor that CHP Officers punched Plaintiff. (Id. at 3-4.) Plaintiff's counsel used the emergency room record in a deposition of the doctor. (Id. at 4.) Plaintiff was also aware that CHP Officer Keene was at the hospital. (Id.) Plaintiff claims this evidence, when compared to the CHP reports she had in her possession, demonstrated a cover-up. (Id.) Therefore, on June 13, 2018, Plaintiff amended the Complaint, which was still in state court, for the third time by naming CHP Officers Keene and Whited as Does 1 and 2. (Doc. Nos. 5-2, 5-3.)

         On July 16, 2018, Keene and Whited removed the case to federal court. (Doc. No. 1.) In August of 2018, Deputies Leyva and Edwards, as well as the County of San Diego, filed motions for judgment on the pleadings, (Doc. Nos. 8, 9), which the court denied in part and granted in part on December 28, 2018, (Doc. No. 13). On March 25, 2019, Magistrate Judge Gallo set an early neutral evaluation conference, case management conference, and status conference for May 8, 2019. (Doc. No. 14.) On May 1, 2019, Plaintiff served her first request for production of documents on CHP Officers Keene and Whited. (Doc. No. 35 at 6.) On May 9, 2019, Judge Gallo issued a scheduling order setting June 7, 2019 as the last day for Plaintiff to amend her Complaint.^[2] (Doc. No. 20.) On June 7, 2019, the deadline for Plaintiff to amend her Complaint passed. (Id.) On June 27, 2019, Plaintiff was served with a response to her May 1, 2019 discovery request.^[3] (Doc. No. 35 at 6.) Plaintiff states that she did not “receive” the response until July 2, 2019. (Id.)

         After receiving the discovery response from CHP Officers Keene and Whited on July 2, 2019, Plaintiff claims she knew the identities of CHP Officers Hughes and Ketcher and understood the significance of their involvement. (Id. at 5.) Plaintiff claims this “new” evidence showed that Hughes and Ketcher were with Deputy Leyva as back-up officers when his dog bit Rivera and Plaintiff was arrested. (Id.) Plaintiff also contends the evidence shows that Hughes and Ketcher were the ones who struck Plaintiff, and if not, they condoned the strikes and are liable as bystanders. (Id.)

         On August 15, 2019, Plaintiff filed two “notices of pending suit, ” directed to Hughes and Ketcher, purporting to inform them that they were Doe Defendants 3 and 4. (Doc. Nos. 26, 27.) On August 16, 2019, Deputies Leyva and Edwards filed a notice of intent to oppose the notices. (Doc. No. 28.) On August 21, 2019, the court interpreted the notices as an attempt to amend the Complaint without first seeking leave to amend and ordered Plaintiff to file any motion to amend the Complaint and/or join a party by September 2, 2019. (Doc. No. 33.) On September 2, 2019, Plaintiff filed the instant motion seeking to name Hughes and Ketcher as Does 3 and 4. (Doc. No. 35.) On September 4, 2019, Plaintiff deposed Hughes and Ketcher. (Doc. No. 38 at 2.) Plaintiff also deposed the Sheriff's Department helicopter pilot and confirmed that Hughes and Ketcher were “probably” the two CHP Officers that were with Deputy Leyva. (Doc. No. 51 at 14-15.) On September 6, 2019, fact discovery closed. (Doc. No. 20 at 2.) On September 9, 2019, Plaintiff filed a “supplemental declaration” requesting leave to further amend her Complaint by adding a claim of conspiracy to obstruct justice under section 1983 and changing her current theory of liability. (Doc. No. 38.) On September 23, 2019, CHP Officers Keene and Whited, and Deputies Leyva and Edwards, filed responses in opposition. (Doc. Nos. 45, 47.) On September 30, 2019, Plaintiff filed her reply. (Doc. No. 51.)

         II. LEGAL STANDARD

         Granting leave to amend a complaint is within the discretion of the trial court. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). Federal Rule of Civil Procedure 16(b) requires courts to issue scheduling orders limiting the time to amend pleadings and complete discovery. Fed.R.Civ.P. 16(b)(1), (b)(3)(A). Under Rule 16(b)(4), “[a] schedule may be modified only for good cause and with the judge's consent.” Rule 16(b)(4) therefore applies when a plaintiff seeks to amend the complaint after the deadline in the pretrial scheduling order for amending the complaint has passed. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). As explained by the Ninth Circuit:

Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s “good cause” standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule “if it cannot reasonably be met despite the diligence of the party seeking the extension.” Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons ...