Wennihan v. Ahcccs

• Decision Date: 05 July 2005
• Docket Number: No. CV-04-1642 PHX ROS.,CV-04-1642 PHX ROS.
• Citation: 515 F.Supp.2d 1040
• Parties: Kim A. WENNIHAN, Plaintiff, v. AHCCCS, State of Arizona, Risk Management, Defendants.
• Court: U.S. District Court — District of Arizona

515 F.Supp.2d 1040

Kim A. WENNIHAN, Plaintiff, v. AHCCCS, State of Arizona, Risk Management, Defendants.

No. CV-04-1642 PHX ROS.

United States District Court, D. Arizona.

July 5, 2005.

COPYRIGHT MATERIAL OMITTED

Kim A. Wennihan, Maricopa, AZ, Pro se.

Melanie Verkamp Pate, Office of the Attorney General, Phoenix, AZ, for Defendants.

ORDER

SILVER, District Judge.

Pending before the Court are Defendants Arizona Health Care Cost Containment System's ("AHCCCS") and State of Arizona, Risk Management's Motion to Strike Plaintiff's Third Amended Complaint ("Motion"). For the reasons stated below, the Motion is granted in part and denied in part.

BACKGROUND

On March 23, 2004, Plaintiff Kim A. Wennihan filed a complaint in Maricopa County Superior Court alleging violations of Title VII of the Civil Rights Act of 1964 against AHCCCS. [Doc. # 1 (Notice of Removal), Ex. 1 ¶ III.] Later, on June 18, 2004, Plaintiff filed her First Amended Complaint adding the State of Arizona as a defendant. [Doc: # 1 (Notice of Removal), Ex. 2.] On July 19, 2004, Plaintiff filed a Second Amended Complaint correcting a typographical error in Section IV of the original complaint. [Doc. # 1 (Notice of Removal), Ex. 3.] Defendants answered the Complaint on August 9, 2004, denying any violation of Title VII of the Civil Rights Act of 1964. [Doc. # 1 (Notice of Removal), Ex. 6 ¶ 4.] Also on August 9, 2004, Defendants removed the case to this court pursuant to 28 U.S.C. §§ 1331 and 1441(b). [Doc. # 1 (Notice of Removal) ¶ 2.] A Scheduling Order was issued on November 17, 2004 requiring that Motions to Amend the Complaint or Answer must be filed by January 14, 2005. [Doc. # 6 (Scheduling Order) ¶ D.] This deadline was later extended to January 28, 2005. [Doc. # 11.]

On January 28, 2005, Plaintiff filed her Third Amended Complaint adding charges related to the Family and Medical Leave Act, the Rehabilitation Act, the Americans with Disabilities Act, workers' compensation laws, and the Equal Pay Act, and further alleging violations of due process, equal protection, and agency rules. [Doc. # 12 (Am.Compl.) ¶¶ 5 and 7.] Plaintiff filed the Amended Complaint without asking the Court for leave. On February 14, 2005, Defendants filed the pending Motion to Strike, specifying Plaintiff's failure to seek leave to file the amendment as grounds to strike. [Doc. # 13 (Mot.Strike) at 2.] Additionally, Defendants argued that assuming the Court allowed Plaintiff to submit an untimely Motion to Amend Complaint, any motion should be denied because of a failure to state a claim upon which relief could be granted. [Id. at 3.] Plaintiff has not filed a response to Defendants' Motion, timely or otherwise.

DISCUSSION

I. Defendants' Motion to Strike Third Amended Complaint for Failure to Comply with Federal Rule of Civil Procedure 15(a) (Doc. # 13)

A. Legal Standard

Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend a pleading "once as a matter of course at any time before a responsive pleading is served." If the pleading cannot be amended as a "matter of course," the party seeking to amend may either seek leave of court to amend the pleading or the opposing party's consent to the amended pleading. Id. Rule 15(a) further instructs trial courts to "freely" grant leave to amend pleadings "when justice so requires." See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990) (stating that leave to amend is generally allowed with "extraordinary liberality."). Federal Rule of Civil Procedure 7(b)(1) requires that a motion be submitted to the court seeking leave. Further, the involvement of a pro se litigant necessitates a liberal application of procedural requirements. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding that pro se pleadings are held to "less stringent standards than [those] drafted by lawyers."); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988) (holding that especially in civil rights claims, a court "has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits ... due to ignorance of technical procedural requirements.").

B. Analysis

The Court recognizes that Plaintiff failed to request leave to file her Third Amended Complaint. Defendants argue that this omission is sufficient to strike the Third Amended Complaint because pro se litigants are expected to have knowledge of the Federal Rules of Civil Procedure and a failure to comply to the rules can lead to adverse action. In Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992), the Ninth Circuit declared that pro se litigants should have an opportunity to correct deficiencies in their pleadings. Further, the Court approved of the warnings the district court issued the plaintiff concerning compliance by pro se litigants with procedural rules. Id.

Defendants rely on Long v. Satz, 181 F.3d 1275 (11th Cir.1999), to support their Motion to Strike for Plaintiff's inclusion of new charges in her Third Amended Complaint. Defendants' reliance is misplaced because Long does not appear to have been a pro se litigant. While Rule 15(a) requires leave for the Plaintiff to amend her complaint, presumably she could have believed that by filing the amended complaint she was requesting that the Court accept it. However faulty this presumption is, the Court will permit Plaintiff latitude because of her pro se status. Plaintiff is warned that because of her failure to respond to Defendants' Motion to Strike,¹ she has pushed the limits of her special treatment. Additional failures to comply with the Federal Rules of Civil Procedure and the Rules of Practice of the United States District Court for the District of Arizona ("Local Rules") will be sanctioned including paying Defendant's attorneys fees and dismissal.

In light of Plaintiff's pro se status, the Court will consider Plaintiff's Third Amended Complaint as a proposed amended complaint.

II. Plaintiff's Proposed Amended Complaint

A. Legal Standard

Federal Rule of Civil Procedure 15(a) allows for amendments by leave of court without written consent from the adverse party. While the district court maintains discretion to grant or deny a motion to amend, the Rule specifies that such "leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); United States v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir.2001) ("A district court's discretion to deny leave to amend is not absolute."); California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1472 (9th Cir. 1987). "In exercising its discretion[,] ... `a court must be guided by the underlying purpose of Rule 15 — to facilitate decision on the merits rather than on the pleadings or technicalities.... Thus, Rule 15's policy of favoring amendments to pleadings should be applied with extreme liberality.'" Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir.1987) (citations omitted).

Some limitations exist on this extremely liberal policy favoring amendments. The Supreme Court held that motions to amend may be denied for the following reasons: (1) undue delay; (2) bad faith or dilatory motives on the part of the movant; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the opposing party; or (5) futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also SmithKline Beecham, 245 F.3d at 1052; Owens v. Kaiser Found., Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.2001). "Generally, this determination should be performed with all inferences in favor of granting the motion." Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999) (citing DCD Programs, Ltd. v Leighton, 833 F.2d 183, 186 (9th Cir.1987)). These factors are not equally important; the possibility of delay alone cannot justify denial of a motion to amend. DCD Programs, Ltd., 833 F.2d at 186. In contrast, futility of the amendment alone provides sufficient grounds to deny an amendment. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995).

B. Analysis

In their Motion to Strike Third Amended Complaint, Defendants assert futility, stating that the additional charges fail to state a claim upon which relief can be granted. [Doc. # 13 (Mot.Strike) at 3]. Defendants argue an Eleventh Amendment defense regarding Plaintiffs claims concerning the Family and Medical Leave Act ("FMLA"), Americans with Disabilities Act ("ADA"), and state law claims. Id. Defendants also argue that the Equal Pay Act ("EPA") claim is futile because it is included with Plaintiff's Title VII claim and barred by the statute of limitations. Id. Additionally, Defendants argue the Rehabilitation Act claim is futile because Plaintiff failed to pursue available administrative remedies. Id. Finally, Defendants assert that Plaintiff's due process and equal protection claims are futile because such claims can only be raised against individuals. Each of the Defendants' arguments is discussed in turn.

1. The Eleventh Amendment and Plaintiff's proposed amended complaint

The Eleventh Amendment of the United States Constitution states that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The United States Supreme Court has created exceptions to the Eleventh Amendment. In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court created an exception to a state official's Eleventh Amendment immunity in suits "challenging the constitutionality of a state official's action[.]" Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The Ex...