United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO AMEND
L. ROBART UNITED STATES DISTRICT JUDGE
the court is Plaintiff Daniel Espinoza's motion to amend
his complaint. (Mot. (Dkt. # 64); see also Prop. SAC
(Dkt. # 64-1).) Defendants City of Seattle and Lieutenant
Thomas Mahaffey (collectively, “Defendants”)
oppose the motion. (Resp. (Dkt. # 66).) The court has
considered Mr. Espinoza's motion, the parties'
submissions in support of and in opposition to the motion,
the relevant portions of the record, and the // applicable
law. Being fully advised,  the court DENIES Mr. Espinoza's
motion for the reasons set forth below.
Espinoza is a police officer with the Seattle Police
Department (“SPD”) and a member of the United
States Marine Corps Reserve (“USMCR”).
(See FAC (Dkt. # 31) ¶¶ 2.2-2.4.) Mr.
Espinoza filed this action on November 14, 2017 (see
Compl. (Dkt. # 1)) and amended his complaint with the
court's leave on August 24, 2018 (see FAC;
8/23/18 Order (Dkt. # 30) at 1-2). On December 18, 2018, the
court stayed this case from January 7, 2019 to January 20,
2020, in order to accommodate Mr. Espinoza while he was
scheduled to be on active duty military deployment.
(See Mot. to Stay (Dkt. # 42) at 2; 12/18/18 Order
(Dkt. # 60).) In its order staying the case, the court
granted the parties an extension until January 7, 2019, to
complete discovery, but stated that “[t]he case
deadlines that have passed will not be renewed.”
(12/18/18 Order.) At the time the court issued that order,
the deadline to amend pleadings had already expired.
(See Sched. Order (Dkt. # 17) at 1.)
current motion, Mr. Espinoza requests leave to amend his
complaint for a second time. (See Mot.) The
operative complaint that Mr. Espinoza seeks to amend- Mr.
Espinoza's first amended complaint-centers entirely on
Mr. Espinoza's allegations that Defendants harassed,
discriminated, and retaliated against him during his
employment with the SPD on the basis of his military status.
(See generally FAC ¶¶ 2.6-2.52.) More
specifically, Mr. Espinoza claims that Defendants passed him
over for promotions, denied his departmental transfer
requests, subjected him to disciplinary actions, and failed
to properly administer his retirement plan because of his
membership in the USMCR. (See Id. ¶¶
2.10-2.11, 2.16, 2.23-2.26, 2.31-2.34, 2.36, 2.39-2.40,
2.42-2.45.) Mr. Espinoza also alleges that when he raised
complaints about this alleged harassment and discrimination,
Defendants either ignored his grievances or retaliated
against him. (See Id. ¶¶ 2.27-2.30, 2.35,
2.38.) Defendants contest Mr. Espinoza's allegations.
(See generally Am. Answer (Dkt. # 35) at 4-18.)
Espinoza now seeks leave to file a second amended complaint
that adds a set of factual allegations and causes of action
that have no relationship with Mr. Espinoza's
discrimination claims. In the proposed second amended
complaint, Mr. Espinoza alleges that Defendants' counsel
included “Mr. Espinoza's full name, home address,
full social security number, tax records and other private
information on the public docket” in a filing submitted
in this litigation on December 6, 2018. (Prop. SAC ¶
2.53.) According to Mr. Espinoza, this private information
was available overnight on the docket for a total of 12 hours
and 12 minutes. (See Id. ¶¶ 2.63-2.67.)
Specifically, Mr. Espinoza claims that Defendants filed his
information at 8:12 p.m. on Thursday, December 6, 2018, and
sealed that filing by 8:24 a.m. on Friday, December 7, 2018.
(See id.) As the court's website materials make
clear, the court's ECF Support Desk is available from
8:00 a.m. to 5:00 p.m. Monday through Friday. Thus, when Mr.
Espinoza's private information // was allegedly filed on
the docket, the ECF Support Desk that Defendants needed to
contact for sealing assistance was closed, but Defendants
were ultimately able to seal that court filing 24 minutes
after the Support Desk opened the following morning.
(See Resp. at 2; Prop. SAC ¶ 2.67.)
solely on Defendants' court filing and alleged refusal to
mitigate the harms Mr. Espinoza's alleged he suffered as
a result of his information being published on the
court's docket for 12 hours and 12 minutes, Mr. Espinoza
seeks to add four causes of action against Defendants, each
of which arises under Washington state law: (1) negligence,
(2) public disclosure of private facts under RCW 42.56.050,
(3) common law invasion of privacy, and (4) outrage. (See
Id. at 19-22.) The court now addresses the merits of Mr.
the court files a pretrial scheduling order pursuant to
Federal Rule of Civil Procedure 16 and the deadline for
amending a pleading or joining a party expires, a party's
motion to amend a pleading or join an additional party is
governed by Rule 16. See Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).
Under Rule 16, a party must show “good cause” for
amendment in order to justify modifying the case schedule.
Fed.R.Civ.P. 16(b)(4) (“A schedule may be modified only
for good // cause and with the judge's consent.”);
see also Johnson, 975 F.2d at 608. “Rule
16(b)'s ‘good cause' standard primarily
considers the diligence of the party seeking the
amendment.” Johnson, 975 F.2d at 609. To show
“good cause” a party must show that it could not
meet the deadline imposed by the scheduling order despite its
party is able to show “good cause” to amend the
case schedule under Rule 16, it must then demonstrate that
amending the pleading at issue is proper under Rule 15.
See Id. at 608; MMMT Holdings Corp. v. NSGI
Holdings, Inc., No. C12-01570RSL, 2014 WL 2573290, at *2
(W.D. Wash. June 9, 2014). Under Rule 15, the court should
“freely give” leave to amend a pleading
“when justice so requires.” Fed.R.Civ.P.
15(a)(2). Five factors are used to assess the propriety of a
motion for leave to amend: (1) bad faith, (2) undue delay,
(3) prejudice to the opposing party, (4) futility of
amendment, and (5) whether the party has previously amended
its pleading. Allen v. City of Beverly Hills, 911
F.2d 367, 373 (9th Cir. 1990) (citing Ascon Props., Inc.
v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)).
Mr. Espinoza's Request to Modify the Case
deadline to amend pleadings expired on November 7, 2018, and
the court made clear in its order staying this case that
expired deadlines would “not be renewed.”
(See Sched. Order at 1; 12/18/18 Order.) Although
Mr. Espinoza did not file his motion to amend until June 13,
2019, Mr. Espinoza's four-page motion does not ask the
court to amend the case schedule to permit him to seek to
amend the first amended complaint or explain why there is
good cause to do so. (See generally Mot). But
Defendants brief the timeliness issue in their opposition
papers (see Resp. at 5-6), and, in his reply, Mr.
Espinoza alleges that good cause exists to amend the case
schedule for two primary reasons: (1) the relevant facts did
not arise until after the deadline to amend had passed, and
(2) Mr. Espinoza had to exhaust his administrative remedies
pursuant to RCW 4.96.020. (See Reply at 2-3.)
Typically, the court declines to consider arguments raised
for the first time in reply. See Coos Cty. v.
Kempthorne, 531 F.3d 792, 812 n.16 (9th Cir. 2008)
(declining to consider an argument raised for the first time
in a reply brief); Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. ...