Powell v. Freedom Fin. Network
| Decision Date | 25 June 2018 |
| Docket Number | C/w No. CV-17-02647-PHX-BSB,No. CV-17-02445-PHX-BSB,CV-17-02445-PHX-BSB |
| Parties | Marcus Powell, Plaintiff, v. Freedom Financial Network, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
This matter is before the Court on Plaintiff's third and fourth motions seeking leave to file a third amended complaint in these consolidated cases. (Docs. 69, 92.)1 Plaintiff has captioned these motions as "Plaintiff's Second Renewed Motion for Leave to Amend Plaintiff's Second Amended Complaint" (Doc. 69), and "Motion for Leave to Amend Complaint." (Doc. 92.) In both motions, Plaintiff seeks leave to amend the operative complaint, the Second Amended Complaint filed in Case No. CV 17-02647-PHX-BSB. (CV 17-02647 Doc. 26; Docs. 57, 58, 59.) The Court denied without prejudice Plaintiff's first motion seeking leave to file a third amended complaint because he failed to comply with Local Rule 15.1. (CV 17-02647 Doc. 46; Doc. 62, amended by Doc. 63.) The Court denied without prejudice Plaintiff's second motion seeking leave to file a third amended complaint for again failing to comply with Local Rule 15.1 and thisCourt's order. (Docs. 66, 67, 68.) As set forth below, the Court denies Plaintiff's third and fourth motions seeking leave to file a third amended complaint for failure to comply with Local Rule 15.1 and this Court's orders, and because the proposed amendments would be futile.
In these consolidated cases, Plaintiff asserts claims for disability discrimination under the Americans with Disabilities Act of 1990 (ADA). Plaintiff commenced these consolidated cases on July 21, 2017 by filing his Complaint in Case No. CV 17-02445. (Doc. 1.) Approximately one week later, on July 28, 2017, Plaintiff filed an Amended Complaint. (Doc. 8.) The Court screened the Amended Complaint, identified the deficiencies of the Amended Complaint, and dismissed it with permission for Plaintiff to file a Second Amended Complaint that cured the deficiencies identified in the Court's order. (Doc. 11.) Plaintiff filed a Second Amended Complaint on August 23, 2017. (Doc. 14.)
On July 14, 2017 and July 17, 2017, Plaintiff also filed a complaint and amended complaint in Maricopa County Superior Court. (CV 17-02647 Doc. 1 at 2.) These complaints asserted claims against the same Defendants that Plaintiff had sued in federal court in Case No. CV 17-02445. On August 7, 2017, Defendants removed Plaintiff's amended complaint filed in Maricopa County Superior Court to this Court. On August 14, 2017, Defendants filed a motion for a more definite statement under Rule 12(e) of the Federal Rules of Civil Procedure. (CV 17-02647 Doc. 8.) On September 27, 2017, Plaintiff filed a response to Defendants' motion for a more definite statement and filed a Second Amended Complaint. (CV 17-02647 Docs. 25, 26.) The Court ordered the cases consolidated on November 1, 2017, with Case No. CV 17-02445 designated as the lead case. (CV 17-02647 Doc. 42.) The Court denied as moot Defendants' motion for a more definite statement because Plaintiff had filed a Second Amended Complaint. (CV 17-02647 Doc. 44.)
Therefore, by the time the Court ordered the cases consolidated on November 1, 2017, Plaintiff had filed six complaints (a complaint, amended complaint, and second amended complaint in each of the two cases). Meanwhile, on October 11, 2017, Defendants filed a motion to dismiss for failure to state a claim under Rule 12(b)(6). (CV 17-02647 Doc. 33.) On October 31, 2017, Plaintiff filed a response to Defendants' motion to dismiss. (CV 17-02647 Doc. 43.) After the Court ordered the cases consolidated on November 1, 2017 and designated Case No. CV 17-02445 as the lead case, Defendants filed a reply in support of their motion to dismiss, in the lead case, on November 7, 2017. (Doc. 38.)
While Defendants' motion to dismiss was pending, the Court held a Case Management Conference on December 14, 2017, and entered a Case Management Order that set June 22, 2018 as the discovery deadline and July 27, 2018 as the dispositive motions deadline. (Docs. 49, 50.) On December 22, 2017, the Court entered an order explaining that after consolidation there were two separate Second Amended Complaints, filed in each of the two consolidated cases, which the Court considered as operative complaints. (Doc. 53 at 3.) The Court stated that Defendants had filed a motion to dismiss the Second Amended Complaint in Case No. CV 17-02467, but had not filed a notice asking the Court to apply the motion to dismiss to the Second Amended Complaint in Case No. CV 17-02445 and had not filed a separate motion to dismiss directed at the Second Amended Complaint in Case No. CV 17-02445. (Id.) Therefore, the Court directed Defendants to either file a separate motion to dismiss in Case No. CV-02445, or file a notice asking the court to apply the motion to dismiss filed in Case No. CV 17-02647 to the Second Amended Complaint filed in Case No. CV 17-02445. (Id. at 4.)
On January 2, 2018, Defendants filed a notice asking the Court to apply the motion to dismiss filed in Case No. CV 17-02467 to the Second Amended Complaint in Case No. CV 17-02445. (Doc. 56.) Defendants alternatively asked the Court to dismiss the Second Amended Complaint in Case No. CV 17-02445, and consider the Second Amended Complaint in Case No. CV 17-02647 as the operative complaint. (Doc. 56 at1, n.1) Defendants made this request based on a December 20, 2017 email from Plaintiff. (Id.) On January 3, 2018, the Court entered an order declining to take action based on an email and stating that if Plaintiff wished to voluntarily dismiss the Second Amended Complaint filed in Case No. CV. 17-02445, then he must file a proper notice with the Court. (Doc. 57 at 2.) To clarify the status of the case, the Court directed Plaintiff to either file a notice voluntarily dismissing the Second Amended Complaint filed in Case No. CV 17-02445, or file a notice stating that he wished to proceed on the Second Amended Complaints filed in both cases. (Id.) The Court explained that if Plaintiff filed a notice to voluntarily dismiss the Second Amended Complaint filed in Case No. CV 17-02445, then the Court would consider the Second Amended Complaint filed in Case No. CV 17-02467 as the operative complaint and apply Defendants' motion to dismiss to that complaint. (Id.) The Court further explained that if Plaintiff filed a notice stating that he wished to proceed under both complaints, then the Court would apply Defendants' motion to dismiss to both complaints. (Id.)
On January 5, 2018, Plaintiff responded to the Court's order and asked the Court to dismiss the Second Amended Complaint filed in Case No. CV 17-02445 and consider the Second Amended Complaint filed in Case No. CV 17-02647 as the operative complaint. (Doc. 58.) On January 8, 2018, the Court granted Plaintiff's request to dismiss the Second Amended Complaint filed in Case No. CV 17-02445 and ordered that the Second Amended Complaint filed in Case No. CV 17-02467 would be the only operative complaint in the consolidated cases. (Doc. 59.)
By this point in the proceedings, Plaintiff had filed six different complaints (Docs. 1, 8, 14; CV 17-02467 Docs. 1, 26), and had the opportunity to cure deficiencies in an amended complaint identified in a court order (Doc. 11), and to address deficiencies in an amended complaint in response to Defendants' motion for more definite statement. (CV 17-02647 Doc. 8.) Plaintiff also had the opportunity to designate the operative complaint or complaints for the consolidated cases. (Docs. 57, 58, 59.)
Nonetheless, on January 16, 2018, shortly after designating the Second Amended Complaint filed in Case No. CV 17-02647 as the operative complaint, Plaintiff filed a motion seeking leave to amend that complaint and file a third amended complaint. (CV 17-02647 Doc. 46.) On January 18, 2018, the Court denied the motion without prejudice because Plaintiff failed to comply with LRCiv 15.1. (Doc. 62, amended by Doc. 63.) On January 29, 2018, Plaintiff filed a second motion to amend the Second Amended Complaint and file a third amended complaint. (Doc. 66.) The proposed third amended complaint lodged with Plaintiff's second motion to amend was not the same as the proposed third amended complaint lodged with his first motion to amend. (Compare CV 17-02647 Doc. 46 at 6-20, with Doc. 67.) On February 1, 2018, the Court denied without prejudice Plaintiff's second motion to amend because Plaintiff failed to comply with LRCiv 15.1 and this Court's order. (Doc. 68.) On January 30, 2018, the Court entered an order granting in part and denying in part Defendants' motion to dismiss for failure to state a claim. (Doc. 65.)
Plaintiff has filed six different complaints and has proposed two additional different complaints. On February 8, 2018, Plaintiff filed the pending "Second Renewed Motion for Leave to Amend Plaintiff's Second Amended Complaint," with a proposed third amended complaint, which the Court identifies as Plaintiff's third motion to amend. (Doc. 69.) If the Court granted Plaintiff's third motion to amend, the proposed third amended complaint would be the seventh complaint filed in these consolidated cases and the ninth complaint that Plaintiff has proposed. On February 22, 2018, Defendant FFN filed a response in opposition to Plaintiff's third motion to amend. (Doc. 78.) Plaintiff has not filed a reply and the time to do so has passed. On March 19, 2018, Plaintiff filed his fourth motion to amend the Second Amended Complaint, but did not include a proposed amended complaint. (Doc. 92.)
Under Rule 15(a) of the Federal Rules of Civil Procedure, "a party may amend its complaint once as a matter of course" within certain time periods. Fed. R. Civ. P.15(a)(1). After those time periods, ...
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