Foley v. Pont, 2:11-CV-1769 JCM (VCF)

• Decision Date: 13 March 2013
• Docket Number: 2:11-CV-1769 JCM (VCF)
• Parties: MICHAEL FOLEY, Plaintiff(s), v. MICHELLE PONT, et al., Defendant(s).
• Court: U.S. District Court — District of Nevada

MICHAEL FOLEY, Plaintiff(s),

v.MICHELLE PONT, et al., Defendant(s).

2:11-CV-1769 JCM (VCF)

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

DATED March 13, 2013

ORDER

Presently before the court is plaintiff Michael Foley's motion to reconsider. (Doc. # 136). Defendants have not responded.

Also before the court is plaintiff's second motion for leave to amend. (Doc. # 140). Defendants Shera Bradley; Georgina Stuart; AP Express, AP Express Worldwide, and Jeffrey Pont (the "AP Express defendants")¹ responded. (Docs. # 142, 143, 145, respectively).² Plaintiff replied. (Docs. # 147, 148, 149, respectively).

Also before the court is defendant Georgina Stuart's motion for summary judgment (doc. # 115) and motion for in camera inspection (doc. # 114). Plaintiff responded (docs. # 117 & 120),³ Stuart replied (docs. # 121, 125, 126).

Also before the court is plaintiff's motion for declaratory relief. (Doc. # 131).⁴ Defendant Stuart responded (doc. # 133), plaintiff replied (doc. # 138).

And last before the court is defendants Nikki Dupree, Kelleher & Kelleher, and John T. Kelleher's ("the Kelleher defendants") motion to dismiss plaintiff's first amended complaint. (Doc. # 154). Plaintiff responded. (Doc. # 158). The Kelleher defendants replied. (Doc. # 159).

I. Factual background

This case arises out of allegations of conspiracy to deprive plaintiff Michael Foley of his constitutional rights. As plaintiff suggests, this conspiracy includes plaintiff's sister, Michelle Pont, and her husband, Jeffery Pont, who acted with a public safety official, Georgina Stuart, to take custody and control of his children in or about the fall of 2008, in violation of his civil rights. (See doc. # 140). While the allegations and conduct at issue are more numerous than laid out here, the court finds this recitation sufficient to address the pending motions before the court.

Plaintiff names the following individuals as part of this alleged conspiracy: Patricia Foley, plaintiff's ex-wife; Patricia Foley's divorce attorneys, the Kelleher defendants; Michelle Pont, plaintiff's sister; Jeffrey Pont, plaintiff's brother-in-law;⁵ the Ponts' companies, AP Express, LLC and AP Express Worldwide, LCC; Georgina Stuart, a Family Services Child Protective Services ("CPS") investigator; Shera Bradley, a psychologist who performed an evaluation of plaintiff; Manual Carranza and others who used plaintiff's daughter, "E", in a television commercial and also helped watch plaintiff's children at the request of Patricia Foley.⁶

In October 2008, plaintiff's children, "E," "M," and "T", were removed from plaintiff's custody following an investigation by CPS. Subsequent family court orders have continued to restrict plaintiff's relationship with his children. Plaintiff alleges that the Ponts made misrepresentations to police, CPS, and family court regarding plaintiff's actions toward his children, specifically "T".

. . . Specifically, plaintiff alleges that defendant Stuart commenced an investigation and proceedings that resulted in plaintiff's loss of association with his children. Plaintiff argues that in November 2008, Stuart abused her office and power by lying and falsifying reports to the district attorney about plaintiff's abuse of his daughter, "T". (Doc. # 55, ¶ 32).

In April 2009, during the pendency of family court proceedings, Bradley performed a psychological evaluation of plaintiff. Bradley's report concluded that if "reunification is sought with his children, [plaintiff] should participate in weekly individual psychotherapy to teach him to take responsibility for his actions and to develop more appropriate responses in interpersonal situations." (Doc. # 55, ¶ 77). Plaintiff denies this conclusion.

On November 4, 2011, plaintiff filed a complaint in this court. (Doc. # 3). On April 4, 2012, the court granted plaintiff leave to amend his complaint. (Doc. # 53). On April 25, 2012, plaintiff filed a first amended complaint. (Doc. # 55). The first amended complaint alleges violation of 42 U.S.C. §§ 1983 and 1985(3), civil conspiracy, intentional infliction of emotional distress, intentional misrepresentation, defamation, false light, negligence. On October 18, 2012, the court dismissed plaintiff's federal civil rights claims against defendants Bradley, Carranza, the Ponts, and the AP Express defendants with prejudice. (Doc. # 134).

II. Motions

A. Motion to reconsider (doc. # 136)

Plaintiff requests this court's reconsideration of its October 8, 2012, order dismissing plaintiff's 42 U.S.C. § 1983 claim against the Ponts and the AP Express defendants with prejudice. Further, it appears plaintiff also seeks reconsideration of this court's treatment of plaintiff's allegations against Stuart.

I. Legal standard

Under Fed.R.Civ.P. 60(b) the court may relieve a party from a final judgment or order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic orextrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

Motions for reconsideration "should not be granted, absent highly unusual circumstances." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). "Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); Kona, 229 F.3d at 889-90 (listing same three factors).

ii. Discussion

Plaintiff argues that the style and format of his pro se complaint may have caused the court to overlook some of his claims. Plaintiff also argues that his failure to allege certain facts in a way that "a skilled attorney" would make such allegation constitutes excusable neglect under Fed. R. Civ. P. 60.

"[T]he determination of whether neglect is excusable is an equitable one [ ] depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000) (citing Pioneer Investment Services Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993). These factors are not exclusive.

The court does not find the factors outlined in Pioneer establish excusable neglect here. First, the court finds that plaintiff's failure to plead facts known to him at the time he filed his first amended complaint to unduly prejudice defendants. Defendants have been required to defend against two iterations of plaintiff's complaint. This factor weighs against finding plaintiff's neglect excusable. Second, the length in the delay is significant—plaintiff has known of the facts he now wishes to allege since, at least, when he lodged his complaint in November 2011. This is over a year; thus this factor also weighs against finding excusable neglect.

The third factor, plaintiff's reason for delay, is neutral. The court acknowledges its obligation to liberally construe the pleadings of pro se litigants, see Balistieri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988); however, the pleading must still state a claim for which relief can be granted, see Fed. R. Civ. P. 12(b)(6). Plaintiff did not receive feedback from the court as to his § 1983 claim against the Ponts and the AP Express defendants until the court issued its order dismissing this claim with prejudice. But even provided plaintiff's previous lack of guidance from the court, equitable balancing requires the court to weigh court efficiency and undue prejudice to defendants against a pro se litigant's attempt to prosecute his case under the applicable pleading standard. Therefore, plaintiff's reason for delay is neutral. Last, the court does not find bad faith in plaintiff's failure to timely allege facts to establish the Ponts and the AP Express defendants' liability under § 1983.

Having considered all of the relevant circumstances surrounding the plaintiff's omission, see Pioneer, 507 U.S. at 395, the court does not find plaintiff's neglect to be "excusable". As such plaintiff's motion for reconsideration is denied.

B. Motion to amend (doc. # 140)

Plaintiff seeks to file a 102 page second amended complaint. The proposed second amended complaint alleges causes of action against six new defendants—bringing the total number of named defendants to 24. The proposed second amended complaint seeks to allege two federal claims: (1) conspiracy to deprive constitutional rights; and (2) civil conspiracy to deprive, defame, defraud, and discriminate in violation of Title IX, in addition to five state law causes of action.

I. Legal standard

Federal Rule of Civil Procedure 15(a) provides that leave to amend "shall be freely given when justice so requires." The Supreme Court has interpreted Rule 15(a) and confirmed the liberal standard district courts must apply when granting such leave. In Foman v. Davis, 371 U.S. 178 (1962), the Court explained: "In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of theamendment, futility of the amendment, etc.—the leave sought should, as the rules require, be ...