Case 2:04-cv-08425 Document 162 Filed 04/23/10 9 Pages

1 TONY WEST Assistant Attorney General 2 ANDR BIROTTE, Jr. United States Attorney 3 JOSEPH H. HUNT VINCENT M. GARVEY 4 PAUL G. FREEBORNE W. SCOTT SIMPSON 5 JOSHUA E. GARDNER RYAN B. PARKER 6 U.S. Department of Justice Civil Division 7 Federal Programs Branch P.O. Box 883 8 Washington, D.C. 20044 Telephone: (202) 353-0543 9 Facsimile: (202) 616-8460 E-mail: paul.freeborne@ usdoj.gov 10 Attorneys for Defendants United States 11 of America and Secretary of Defense 12 13 15 16 v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV04-8425 VAP (Ex) DEFENDANTS RESPONSE TO PLAINTIFFS SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT DATE: April 26, 2010 TIME: 2:00 p.m. BEFORE: Judge Phillips

14 LOG CABIN REPUBLICANS,

17 UNITED STATES OF AMERICA AND ROBERT M. GATES, Secretary of 18 Defense, 19 20 21 22 23 24 25 26 27 28

DEFENDANTS RESPONSE TO PLAINTIFFS SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Defendants.

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

The Courts tentative ruling concluding that Log Cabin Republicans

2 (LCR) failed to meet its burden of establishing standing is correct and properly 3 disposes of this action. 4 Although LCR suggests that its right to sue as an associational plaintiff is 5 based on the date of the filing of the first amended complaint, and not the date the 6 action commenced on October 12, 2004 (Doc. 161 at 2: 7), the Court properly 7 recognized that LCR had the burden of establishing that at least one of its 8 members had standing to sue in his or her own right as of the date this action 9 commenced (April 21, 2010 Tentative Minute Order, at 7). Indeed, the case law 10 makes clear, consistent with the Courts tentative ruling, that the standing of the 11 original plaintiff is assessed at the time of the original complaint, even if the 12 complaint is later amended. Schreiber Foods, Inc. v. Beatrice Cheese, Inc. 402 13 1198, 1202 n.3 (Fed. Cir. 2005) (emphasis in original). Because it is now 14 undisputed that John Alexander Nicholson was not a member when this action 15 commenced in 2004, LCR cannot carry its burden, and Defendants are entitled to 16 summary judgment. 17 LCR can not carry its burden to establish standing on the basis of an 18 anonymous John Doe. First, as the Court correctly noted, LCR has failed to 19 adduce any evidence that Doe was actually a member of LCR at the time LCR filed 20 its initial complaint. LCR now concedes that it has no evidence that John Doe was 21 a member when this action was commenced (Doc. 161 at 4: 16-18). Second, to 22 ensure associational standing is established, the Court ordered LCR to identify, by 23 name, at least one of its members injured by the [Dont Ask, Dont Tell] policy 24 if it wishes to proceed with this action (Doc. 24, at 17: 9-10) (emphasis added). 25 LCRs after-the-fact attempt to manufacture standing should be rejected. LCR had 26 the opportunity to come forward with a named member, as ordered, but failed to do 27 so. Accordingly, the identification of an anonymous member fails as a matter of 28
DEFENDANTS RESPONSE TO PLAINTIFFS SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

-1-

1 law. LCR has urged the prompt resolution of this matter. The Court should thus 2 now promptly dismiss this action pursuant to its tentative ruling. 3 4 5 6 I. LCR CANNOT MANUFACTURE ASSOCIATIONAL STANDING AFTER THE ACTION IS COMMENCED LCR does not assert any harm to itself; it instead purports to bring this

7 constitutional challenge to a duly enacted statute based upon asserted harm to its 8 members. To properly proceed with its challenge, LCR must meet the 9 requirements of associational standing set forth in Hunt v. Wash. State Apple 10 Adver. Commn, 432 U.S. 333 (1977), including the requirement that its members 11 . . . are suffering immediate or threatened injury as a result of the challenged action 12 of the sort that would make out a justiciable case had the members themselves 13 brought suit. Id. at 342 (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)) 14 (emphasis added). This inquiry is especially rigorous when reaching the merits of 15 [a] dispute would force [the court] to decide whether an action taken by one of the 16 other two branches of the Federal Government was unconstitutional. Raines v. 17 Byrd, 521 U.S. 811, 819-20 (1997). The Supreme Court has thus recognized that 18 the law of Art. III standing is built on a single basic ideathe idea of separation 19 of powers[,] and [i]n light of this overriding and time-honored concern about 20 keeping the Judiciarys power within its proper constitutional sphere, [a court] 21 must put aside the natural urge to proceed directly to the merits of [a] dispute and 22 to settle it for the sake of convenience and efficiency. Id. at 820 (quoting Allen 23 v. Wright, 468 U.S. 737, 752 (1984)). Before this action can proceed, the Court 24 must [thus] carefully inquire as to whether [LCR has] met [its] burden of 25 establishing that [its] claimed injury is personal, particularized, concrete, and 26 otherwise judicially cognizable. Id. 27 The Courts tentative ruling is correct in recognizing that LCR must [but
DEFENDANTS RESPONSE TO PLAINTIFFS SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

28 has failed to] demonstrate that at least one of its members had standing to sue in his -2-

1 or her own right as of the date this action commenced on October 12, 2004 2 (April 21, 2010 Tentative Minute Order, at 7). The tentative ruling correctly and 3 properly cites to, among other cases, the Supreme Courts decision in Friends of 4 the Earth, Inc. v. Laidlaw Envtl. Serv., 528 U.S. 167 (2000), which recognized that 5 before a claim can proceed based upon associational standing there must be a 6 showing that LCR had Article III standing at the outset of the litigation. Id. at 7 180. Nothing in the Courts March 22, 2006 Order (Doc. 24) or in the cases relied 8 upon by LCR in its supplemental memorandum allow LCR to file suit and then 9 later attempt to manufacture standing by identifying individuals not among LCRs 10 membership on October 12, 2004. 11 LCRs contention that the dismissal of its original complaint and the filing 12 of the first amended complaint rendered the original complaint of no legal effect 13 and obsolete is wrong as a matter of fact and law. (Doc. 161 at 19-20). Rather, 14 the Courts March 22, 2006 Order allowed LCR to file an amended complaint 15 correcting the defect in LCRs original complaint, which failed to identify a single 16 individual who is (1) an active member of the LCR; (2) has served or currently 17 serves in the Armed Forces; and (3) has been injured by the policy (Doc. 24: 1218 14). The Order did so by ordering LCR to identify, by name, at least one of its 19 members injured by the subject policy if it wishes to proceed with this action (id. 20 at 17: 9-10) based upon LCRs assertion in its October 12, 2004 Complaint that it 21 represents members already separated or discharged from the Armed Forces 22 pursuant to the policy (id. at 17 n. 7 (citing paragraph 9 of Complaint)). The 23 Court did not dismiss the action, as LCR suggests (Doc. 161 2: 2-6). Simply put, 24 this action was not commenced when LCR amended its complaint it was 25 commenced by filing a complaint with the court. Fed. R. Civ. P. 3. 26 It is well-established, moreover, that the existence of federal jurisdiction 27 depends on the facts as they exist when the complaint is filed. Lujan v. 28 Defenders of Wildlife, 504 U.S. 555, 571 n.4 (1992) (quoting Newman Green, Inc.
DEFENDANTS RESPONSE TO PLAINTIFFS SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

-3-

1 v. Alfonzo-Larrin, 490 U.S. 826, 830 (1989)) (emphasis in original) (plurality op) 2 It cannot be, as LCR asserts, that standing may be based upon facts that did not 3 exist at the outset. Id. Rather, [t]he initial standing of the original plaintiff is 4 assessed at the time of the original complaint, even if the complaint is later 5 amended. Schreiber Foods, Inc., 402 F.3d at 1202 n.3 (emphasis in original). 6 Federal litigants thus cannot, as LCR has attempted to do here, scramble to fix 7 jurisdictional defects by manufacturing jurisdiction after the commencement of 8 their original action. See Lujan, 504 U.S. at 571 n.4 (rejecting contention that 9 governments participation in the lawsuit itself could be a basis for standing); 10 Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 574-75 (2004) (change 11 in partys citizenship after suit is filed cannot cure lack of diversity jurisdiction 12 when original suit filed); Perry v. Village of Arlington Heights, 186 F.3d 826, 830 13 (7th Cir. 1999) ([b]ecause standing goes to the jurisdiction of a federal court to 14 hear a particular case, it must exist at the commencement of the suit; It is not 15 enough for Perry to attempt to satisfy the requirements of standing as the case 16 progresses. The requirements of standing must be satisfied from the outset and in 17 this case, they were not.). 18 The cases on which LCR relies are not to the contrary. In contrast to this 19 action, the cases cited by LCR involve the addition of new plaintiffs, new claims, 20 or new allegations in an amended complaint, and an analysis of whether standing 21 exists in light of those changes.1 See County of Riverside v. McLaughlin, 500 U.S. 22 44 (1991) (new plaintiffs added by amended complaint); Thomas v. Mundell, 572 23 F.3d 756 (9th Cir. 2009) (new plaintiffs); Bochese v. Town of Ponce Inlet, 405 F.3d 24 25 26 27 28
Significantly, LCR, which remains the one and only plaintiff from the date this action commenced in October 2004, seeks to create jurisdiction through the amendment of its complaint. LCR provides no authority for such a proposition and, indeed, the authority is to the contrary. Essentially, a plaintiff may correct the complaint to show that jurisdiction does in fact exist; however, if there is no federal jurisdiction, it may not be created by amendment. James Wm. Moore, 3 Moore's Federal Practice 15.14[3], at 15-40 (2010).
DEFENDANTS RESPONSE TO PLAINTIFFS SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

-4-

1 964, 977-78 (l1th Cir. 2005) (new claims); Lynch v. Leis, 382 F.3d 642, 647 (6th 2 Cir. 2004) (new plaintiff); Jadwin v. County of Kern, No.1:07-CV-00026 3 -0WW-DLB, 2009 WL 2424565 (E.D. Cal. August 6, 2009) (new parties, claims, 4 and allegations);2 Kerr Corp. v. 3M Co., 2006 WL 6005803, at *2 (W.D. Wis. 5 2006) (new counterclaim asserted in amended answer).3 Indeed, the Sixth Circuit 6 in Lynch one of the cases on which LCR places reliance in its supplemental 7 memorandum declined to hold that the operative pleading was the third 8 amended complaint, stating that [a] careful reading of County of Riverside 9 demonstrates that the second amended complaint was important because it was that 10 complaint which named three additional plaintiffs who were still in custody at 11 the time the complaint was filed, and who were the plaintiffs found to have 12 standing by the Court. 382 F.3d at 647. 13 Here, by contrast, there is and always has been only one plaintiff, the Log 14 Cabin Republicans, which must show its standing, if at all, through its membership 15 as of the date it filed the original complaint. Defendants have no quarrel with the 16 concept, set forth in the cases cited by LCR, that a party must establish its standing 17 as of the date when it becomes a plaintiff. That, in fact, is exactly what LCR has 18 failed to do, and it is precisely why summary judgment for Defendants is required.4 19 20 21 22
Nevertheless, plaintiffs' motion to file the second amended complaint (Attachment 1 hereto) indicates that the pleading added new claims and allegations and added additional defendants to an existing claim.
3 2

23 2003), another of LCRs cases, is inapposite for a different reason. There the issue was whether 24 the plaintiff which sought organizational standing in its own right rather than associational
standing through its members had shown a sufficient likelihood of future injury to seek

Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263 (11th Cir.

25 prospective relief. In that context, the court observed that the operative pleading was the most 26 27 28
recent complaint setting forth the most up-to-date factual allegations. Even if the Court were to conclude that LCR could establish standing based upon the date of the filing of the first amended complaint, LCR still cannot establish standing based upon Mr. Nicholson. As we explained in our motion for summary judgment, it is undisputed that Mr.
DEFENDANTS RESPONSE TO PLAINTIFFS SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

-5-

1 2 3

II. UNDER NO CIRCUMSTANCES DOES JOHN DOE CONFER STANDING Perhaps recognizing this well-established body of law, LCR now asserts that

4 John Doe was a Log Cabin member before October 12, 2004 (Doc. 161 at 125 13). While this contention implies that LCR recognizes that its associational 6 standing to sue is determined at the commencement of the litigation, its assertion is 7 legally and factually flawed. As discussed, the Courts March 22, 2006 Order 8 specifically and unequivocally ordered LCR to identify, by name, at least one of 9 its members injured by the [Dont Ask, Dont Tell] policy if it wishes to proceed 10 with this action (Doc. 24, at 17: 9-10) (emphasis aded). LCR cannot thus rely 11 upon the anonymous John Doe to confer standing; this is true regardless of when 12 Doe became a member of LCR. 13 Remarkably, LCR asserts, without any factual basis, that John Doe was a 14 Log Cabin member before October 12, 2004 (Doc. 161 at 4: 12-13), but in the 15 same breath concedes that it lacks evidence to support that assertion. See id. at 4: 16 16-18 (Log Cabin is attempting to locate evidence to support assertion). At the 17 summary judgment stage, LCR can no longer rest on . . . mere allegations, but 18 must set forth by affidavit or other evidence specific facts, Fed. R. Civ. P. 19 56(e) to establish its standing. Lujan, 504 U.S. at 561. This showing is especially 20 rigorous where, as here, LCR purports to sue on behalf of someone else. Id. at 21 562 (emphasis in original). LCRs failure to identify by name a member that could 22 sue in his own right at the time of the initial complaint by this point puts an end to 23 the matter. LCR has no right to spring further evidence upon Defendants at the 24 25 26 2006, or even before his deposition in this case on March 15, 2010 (Doc. 141 at 5; Nicholson 27 Dep. at 9:14-10:7, Mar. 15, 2010, Exhibit 2 to Doc. 136), and, accordingly, was not a member of
LCR at the time of the first amended complaint based upon LCRs own articles of incorporation. Nicholson never paid dues to LCR before the filing of the first amended complaint on April 28,

28
DEFENDANTS RESPONSE TO PLAINTIFFS SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

-6-

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

1 April 26, 2010 hearing, especially when any such evidence would have been within 2 its control at the time of the filing of initial complaint. The time for any such new 3 evidence has long passed. 4 5 CONCLUSION LCRs supplemental memorandum only serves to further reinforce why the

6 Courts tentative ruling is correct, and why this action is the very type of action for 7 which the Court should refrain from proceeding under its Article III powers. 8 Facial challenges such as the one LCR brings here are disfavored, because they 9 run contrary to the fundamental principle of judicial restraint and threaten to 10 short circuit the democratic process. Washington State Grange v. Washington 11 State Republican Party, 552 U.S. 442, 450 (2008). That is particularly true here, 12 where LCR has failed to establish the minimum requirements of associational 13 standing. For all of these reasons, and those set forth in Defendants memorandum 14 in support of summary judgment, Defendants are entitled to summary judgment. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DEFENDANTS RESPONSE TO PLAINTIFFS SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

-7-

1 2 Dated: April 23, 2010 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DEFENDANTS RESPONSE TO PLAINTIFFS SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

Respectfully submitted, TONY WEST Assistant Attorney General ANDR BIROTTE, JR United States Attorney JOSEPH H. HUNT Director VINCENT M. GARVEY Deputy Branch Director /s/ Paul G. Freeborne PAUL G. FREEBORNE W. SCOTT SIMPSON JOSHUA E. GARDNER RYAN B. PARKER Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 6108 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8202 paul.freeborne@usdoj.gov Attorneys for Defendants United States of America and Secretary of Defense

Case 2:04-cv-08425 Document 162-1 Filed 04/23/10 11 Pages

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICE OF EUGENE LEE Eugene D. Lee (SB#: 236812) 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: elee@LOEL.com Attorney for Plaintiff DAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION DAVID F. JADWIN, D.O., Plaintiff, v. COUNTY OF KERN, et al., Defendants. Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Date: October 3, 2008 Time: 10:00 a.m. Courtroom: U.S. District Court, Crtrm. 3 2500 Tulare St, Fresno, CA Complaint Filed: January 6, 2007 Trial Date: December 2, 2008

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Please take notice that on October 3, 2008, at 10:00 a.m., or as soon thereafter as the parties may be heard, Plaintiff DAVID F. JADWIN, D.O. will and hereby does move this Court U.S. Dist. Ct., Bankr. Crtrm., 1300 18th St., Bakersfield, CA, for leave to file the Second Amended Complaint. For the reasons set forth in the accompanying Memorandum of Points and Authorities and Declaration of Eugene Lee, Plaintiff respectfully requests that this Court grant it leave to file the Second Amended Complaint, and for such other relief as may be just.

RESPECTFULLY SUBMITTED on September 2, 2008. /s/ Eugene D. Lee LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: elee@LOEL.com Attorney for Plaintiff DAVID F. JADWIN, D.O.

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.

MEMORANDUM OF POINTS & AUTHORITIES BACKGROUND Plaintiff has attempted without success to obtain Defendants stipulation to file the Second Amended Complaint (SAC) and the revised Second Amended Complaint ("RSAC"). On January 6, 2007, Plaintiff filed the Complaint initiating this action. On April 24, 2007 and on June 13, 2007, Plaintiff supplemented the Complaint to reflect events occurring after the date of the last-filed Complaint. On January 4, 2008, Plaintiff sent the draft Third Supplemental Complaint (TSC) almost identical to the SAC to Defendants for their review. Defendants never responded. On January 22, 2008, Plaintiff noted Defendants had not responded. Defendants replied that they were inclined not to so stipulate but would reconsider subject to certain conditions. On April 17, 2008, after further discussion between the parties, Plaintiff again sent the draft TSC to Defendants for their review. Defendants never responded. On May 4, 2008, Plaintiff again requested Defendants stipulation to filing the TSC. On May 5, Defendants refused and stated the pleadings are done. On June 30, 2008, Plaintiff filed with this Court his notice of withdrawal of motion for leave to file the TSC, stating: Unless Defendants stipulate otherwise, Plaintiff intends to file a motion for leave to file and serve the Second Amended Complaint, naming the County of Kern . . . as defendants in their personal and official capacities under Count Ten [sic] of Plaintiffs Complaint (42 U.S.C. 1983 procedural due process). Doc. 159, 1:24 2:1. On July 1, 2008, Plaintiff requested Defendants stipulation to filing the SAC. Later that day, Defendants stated that they refused. Discovery in this action closed on August 18, 2008, except for depositions per the stipulation and order of the parties. On August 29, during the deposition of Philip Dutt, the parties met and conferred regarding withdrawal of Plaintiffs prior motion for leave to file the Second Amended Complaint so that Plaintiff could further add additional claims arising out of facts which were newly discovered during the course of Plaintiffs depositions. Defendants refused to stipulate to the filing of the revised Second Amended Complaint. Plaintiff therefore had no choice but to bring this motion seeking leave to file the second
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 2

1 2 3 4 5

amended complaint. II. ARGUMENT Plaintiff seeks to effect the following items with the filing of the SAC: A. Item 1: Supplement the Complaint regarding events that occurred after the filing of Plaintiffs second supplemental complaint. 1. Requested Change

6 Plaintiff filed the Second Supplemental Complaint on June 13, 2007. Plaintiff now seeks to 7 supplement the Complaint regarding events occurring subsequently, including: (a) Defendant Countys 8 lifting of Plaintiffs home restriction on April 30, 2007, (b) Defendant Countys non-renewal of 9 Plaintiffs employment contract on October 4, 2007 and (c) Plaintiffs exhaustion of administrative 10 remedies. Accordingly, Plaintiff seeks to make additions to the Complaint including the following: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 149. On October 10, 2007, Plaintiff again filed a supplemented Tort Claims Act complaint with the County of Kern, supplemented to reflect events occurring after filing of the supplemented Tort Claims Act complaint on April 23, 2007.
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 3

20. Just before Thanksgiving of 2006, Plaintiff confided to Gilbert Martinez, the Laboratory Manager at KMC, that he intended to blow the whistle on KMC to appropriate outside agencies. Days later, Defendant Harris met with Philip Dutt, M.D., Interim Chair of the Pathology Department at KMC (Dutt), to discuss what steps the Pathology Department should take in anticipation of Plantiffs whistleblowing to these outside agencies. 27. On April 30, 2007, Defendant County sent a letter to Plaintiff notifying him of its decision to lift the home restriction. To date, Plaintiff has received no formal explanation for the involuntary leave or the restriction to his home. 28. On May 1, 2007, Defendant County sent an email to Plaintiff notifying him of its decision not to renew Plaintiffs employment contract, which was not due to expire until October 4, 2007, and to let the contract run out. To date, Plaintiff has received no formal explanation for the decision not to renew his contract. 29. On October 4, 2007, Defendant County failed to renew Plaintiffs employment contract, which therefore expired. 30. On August 15, 2008, Ray Watson, Chair of the Board of Supervisors of Defendant County, testified in deposition that Defendant County had decided during the course of several KMC Joint Conference Committee meetings not to renew Plaintiffs employment contract because he had filed the instant lawsuit. 138. On October 4, 2007, Defendant County failed to renew Plaintiffs employment contract, which therefore expired. 142. During the time that Defendants placed Plaintiff on involuntary full-time leave, including the period from December 7, 2006 to October 4, 2007, Defendants effectively denied Plaintiff the opportunity to earn Professional Fees as set forth in Article II of the Second Contract.

1 2 3 4 5 6

153. On October 16, 2007, Plaintiff again filed a supplemented complaint with the DFEH, supplemented to reflect events occurring after filing of the supplemented complaint with the DFEH on April 23, 2006. 154. On September 2, 2008, Plaintiff again filed a supplemented complaint with the DFEH, supplemented to reflect additional claims for retaliation for opposing practices made unlawful under CFRA and FEHA which arose after evidence was newly discovered subsequent to the filing of the supplemented complaint with the DFEH on October 16, 2007. 2. Why It Should be Permitted

7 Rule 15(d) of the Federal Rules of Civil Procedure provides, in pertinent part: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. A supplemental pleading is used to allege relevant facts occurring after the original pleading was filed. Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 468. A supplemental pleading is designed to bring the action up to date and to set forth new facts affecting the controversy that have occurred since the original pleading was filed. Manning v. City of Auburn (11th Cir. 1992) 953 F.2d 1355, 13591360. A supplemental pleading may properly allege events occurring after the original complaint was filed and identify any new parties involved therein. Rule 15(d) plainly permits supplemental amendments to cover events happening after suit, and it follows, of course, that persons participating in these new events may be added if necessary. Griffin v. County School Board (1964) 377 U.S. 218, 226227. Supplemental pleadings can only be filed with leave of court and upon such terms as are just. Glatt v. Chicago Park Dist. (7th Cir. 1996) 87 F.3d 190, 194. However, supplemental pleadings are favored because they enable the court to award complete relief in the same action, avoiding the costs and delays of separate suits. Therefore, absent a clear showing of prejudice to the opposing parties, they are liberally allowed. See Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 473; Quaratino v. Tiffany & Co. (2nd Cir. 1995) 71 F.3d 58, 66. The purpose of Rule 15(d) is to promote as complete an adjudication of the dispute between the parties as is possible. LaSalvia v. United Dairymen of Arizona, 804 F.2d 1113, 1119 (9th Cir. 1986), cert. denied, 482 U.S. 928 (1987). The supplements sought by Plaintiff promote a complete and efficient adjudication of the disputes between the existing parties to this action. Item 1 Plaintiffs proposed supplements allege a series of adverse employment actions taken by Defendants against Plaintiff that were first referenced in
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 4

1 2 3 4 5 6 7 8 9 10 11

Plaintiff's original and subsequent complaints. For instance, Plaintiffs Second Supplemental Complaint had alleged in pertinent part: 102. On or about December 7, 2006, Culberson sent a letter addressed to Plaintiff informing him that he was being placed on involuntary paid administrative leave pending resolution of a personnel matter. 104. On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he still had yet to be provided any explanation for his involuntary leave or any indication as to whether or when it would end so that he could return to work, (ii) the involuntary leave requiring him to remain at home by his phone during working hours was threatening to erode his pathology skills, jeopardizing his employability and career as a pathologist, (iii) the involuntary leave was denying him the opportunity to earn income from professional fee billing, and (iv) part-time work was deemed therapeutic for him by his physician and that the confinement to his house during working hours was having the opposite effect of severely exacerbating his depression. 105. To date, Plaintiff remains on involuntary leave, with no explanation therefore or any indication as to whether or when it will end. Plaintiff alleges that these actions constituted a continuing violation and/or a pattern and practice of

12 discrimination, harassment, and/or retaliation taken against Plaintiff because of his protected 13 characteristics and activities. If Plaintiff is denied leave to file the SAC, Plaintiff would be forced to file 14 a new law suit re-alleging most of the same claims contained in this action based on these new adverse 15 actions. Permitting the supplement would result in a more efficient use of scarce judicial resources. 16 More importantly, there is no risk of prejudice or surprise to Defendants. First, the supplements 17 comprise allegations of continuing injury or continuation of the wrongful conduct already alleged in 18 Plaintiffs original or supplemental complaints. Second, Plaintiff has repeatedly apprised Defendants of 19 his desire to make the foregoing supplements to his complaint since January 4, 2008, when Plaintiff first 20 sent Defendants the draft TSC. Defendants initially refused to respond at all, then ultimately refused to 21 stipulate. 22 Third, Plaintiff served on Defendants copies of the supplemented complaint he filed with the 23 Department of Fair Employment & Housing on October 16, 2007 and supplemented Tort Claims Act 24 claim he filed with the County of Kern on October 10, 2007, each detailing the same supplemental 25 allegations which Plaintiff now proposes in the SAC. 26 Fourth, Plaintiffs Initial Disclosure contained a Rule 26 report issued by Plaintiffs forensic 27 economist which fully disclosed the harm that Plaintiff suffered and expected to suffer because of the 28 events which Plaintiff now seeks to supplementally allege.
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 5

1 2 3 4 5 6 7 8 9 10 11 12

Defendants cannot in good faith claim to be surprised or prejudiced by Plaintiffs proposed supplements. B. Item 2: To include an element of Plaintiffs Count VI for disability discrimination added to Plaintiff's Prima Facie Case by a decision of the California Supreme Court issued after the filing of this lawsuit. 1. Requested Change

Plaintiff seeks to add Paragraph 125 to allege Plaintiffs ability to perform the essential functions of his job, which the California Supreme Court found to be an element of Plaintiffs disability discrimination claim in Green v. State of California, issued by the California Supreme Court on August 23, 2007. Paragraph 125 reads as follows: 125. At all times material here, excluding a portion of the time when he was out on voluntary full-time medical leave, Plaintiff has been able to perform the essential functions of the employment positions he held with Defendants and each of them, with reasonable accommodation. 2. Why It Should be Permitted

13 Rule 15 provides the parties with flexibility in presenting their claims and defenses. It assures 14 that cases will be heard on their merits and avoids injustices which sometimes resulted from strict 15 adherence to earlier technical pleading requirements. Foman v. Davis (1962) 371 U.S. 178, 182; Slayton 16 17 federal pleadings: i.e., their purpose is simply to provide the parties with fair notice of the general nature 18 and type of the pleader's claim or defense. As long as such notice has been provided, the pleadings 19 should not limit the pleader's claims or defenses. Ibid.; see also Grier v. Brown (N.Dist. Cal. 2002) 230 20 F.Supp.2d 1108, 1111. 21 Plaintiffs proposed correction of an omission does not allege any new facts; it arises out of the 22 same exact nucleus of facts alleged in Plaintiffs original and supplemental complaints filed with the 23 Court. Simply put, it merely seeks to correct the omission of a legal pleading element required for 24 Plaintiffs Counts VI through VIII for violation of Californias disability discrimination laws. 25 Defendants cannot claim to have been denied fair notice of the general nature of Plaintiffs disability 26 discrimination claims or the alleged facts from which they arise. Permitting the correction would not 27 prejudice Defendants in any way. Conversely, denying the correction may prevent consideration of 28 Plaintiffs disability discrimination claims on their merits and result in injustice.
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 6

v. American Express Co. (2nd Cir. 2006) 460 F.3d 215, 228. Rule 15 reflects the limited role assigned to

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

C.

Item 3: Add already-named and existing Defendants, the County of Kern and Irwin Harris, to Plaintiffs Count IX for 42 U.S.C. 1983 due process violation claim, based upon events which were already alleged in the Complaint. 1. Requested Change

Plaintiff seeks to amend Count IX (See Paragraph 207 of the SAC) to add Defendants County of Kern and Irwin Harris to that count. Both Defendants are already named and existing parties and no joinder of new parties is required under Rule 19. Rather, joinder of a claim against an existing party is required under Rule 18. 2. Why It Should be Permitted

Rule 15 requires that leave to amend should be freely given when justice so requires. Fed. R. Civ. Proc. 15(a)(2); see Lone Star Ladies Invest. Club v. Schlotzsky's Inc. (5th Cir. 2001) 238 F.3d 363, 367 (policy favoring leave to amend a necessary companion to notice pleading and discovery.) This policy is to be applied with extreme liberality. Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003) 316 F.3d 1048, 1051; Moore v. Baker (11th Cir. 1993) 989 F.2d 1129, 1131 (justifying reasons must be apparent for denial of a motion to amend). Absent prejudice, or a strong showing of any of the other reasons for denying leave to amend, there exists a presumption under Rule 15(a) in favor of granting leave to amend. Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003) 316 F.3d 1048, 1052. While leave to amend should not be granted automatically, the circumstances under which Rule 15(a) permits denial of leave to amend are limited. Ynclan v. Department of Air Force (5th Cir. 1991) 943 F.2d 1388, 1391. The opposing party may claim prejudice from any amendment, such as the expense of responding to the amended pleading and possible delay in getting to trial; however, expense and delay are probably not enough by themselves to deny leave to amend. There must be some showing of inability to respond to the proposed amendment. Likewise, the need for additional discovery is insufficient by itself to deny a proposed amended pleading. See U.S. v. Continental Illinois Nat'l Bank & Trust (2nd Cir. 1989) 889 F.2d 1248, 1255; Genentech, Inc. v. Abbott Laboratories (N.Dist. Cal. 1989) 127 F.R.D. 529, 531. Rule 18(a) expresses a philosophy of great liberality toward entertaining the broadest possible scope of action consistent with fairness to parties; joinder of claims, parties, and remedies is strongly encouraged. Lanier Business Products v Graymar Co. (1972, Dist. Md.) 342 F.Supp 1200. A party
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

should be able to join all claims he has against his opponent as matter of course to avoid a multiplicity of litigation and possible claims of res judicata at later date. Ibid. Joinder of Plaintiffs Count IX for 42 U.S.C. 1983 due process violations against Defendants County and Harris should be permitted. Both Defendants are already named in several of Plaintiffs Counts and are existing parties in this action. Joinder of Defendant County in County IX is clearly warranted under Monell v Dept. of Social Services (1978) 436 U.S. 658 and would avoid multiplicity of litigation and claims of res judicata at a later date. Joinder of Harris became warranted in light of the deposition testimony of David Culberson, former Interim CEO of KMC, on August 21, 2008 wherein Plaintiff learned for the first time of the extent of Dr. Harriss participation in Defendant Countys decision to place Plaintiff on administrative leave on December 7, 2006 and, subsequently, not to renew Plaintiffs employment contract. There is no risk of prejudice or surprise to Defendants. Defendants have had fair notice of the nucleus of facts underlying Defendant Countys and Harriss liability under Count IX e.g., demotion of Plaintiff and reduction of his base salary, placement of Plaintiff on involuntary administrative leave with home restriction, and non-renewal of Plaintiffs contract since at least January 2008 when Plaintiff sent the draft TSC to Defendants. On June 30, 2008, Plaintiff filed with this Court his notice of withdrawal of motion to file the TSC, expressly stating therein Plaintiffs intention to seek joinder of Count IX against Defendant County (Doc. 159). On July 1, 2008, Plaintiff again gave Defendants notice, providing them a copy of the SAC along with a proposed stipulation (which Defendants rejected). With discovery in this action due to close on August 18, 2008, Defendants had more than a month to conduct whatever additional discovery they deem necessary in light of the SAC although no additional discovery should conceivably be necessary to parse out a Monell analysis. More importantly, Plaintiff is not a percipient witness having knowledge of any facts regarding Defendant Countys liability under Monell or Dr. Harriss liability for his participation in adverse employment actions against him, other than what was revealed by Defendants former and current employees themselves during their depositions. No further discovery needs to be conducted by Defendants in order to defend against the new claims proposed to be brought against Defendants County and Harris. Even if such were the case, Defendants have ready access to County witnesses and Harris himself in contrast to Plaintiff who must engage in the formality of deposing them to access their
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 8

1 2 3 4 5 6 7 8

testimony. Finally, under Cal. Govt. C. 995 et seq., Defendant County is required to indemnify its employees against liability for violations alleged in Plaintiffs Count IX as set forth in Plaintiffs initial complaint filed on January 6, 2008. The joinder of Count IX against Defendant County simply adds direct liability where indirect liability for individually named employees under Count IX already exists. D. Item 4: Joinder of new claims for CFRA retaliation (existing Count III), FEHA retaliation (Govt C. 12940(h), new Count XI) and FMLA retaliation (29 U.S.C. 2615(b), new Count X) against Defendant County and Does 1 through 10 based upon newly-discovered evidence. 1. Requested Change

9 Plaintiff seeks to amend the complaint to add new Counts X and XI and a new claim for CFRA 10 retaliation under existing Count III against Defendant County and Does 1 through 10. Defendant County 11 is an already named and existing party and no joinder of new parties is required under Rule 19. Rather, 12 joinder of new claims against an existing party is required under Rule 18. 13 During the course of Plaintiffs deposition of Supervisor Ray Watson on August 25, 2008, 14 Plaintiff for the first time heard testimony that Defendant County had decided not to renew Plaintiffs 15 employment contract with the County due to the fact that Plaintiff had initiated this action. Based on this 16 newly-discovered evidence, Plaintiff requests leave to join new claims against Defendant County and 17 Does 1 through 10 for FEHA oppositional retaliation pursuant to Govt C. 12940(h) (new Count XI), 18 FMLA oppositional retaliation pursuant to 29 U.S.C. 2615(b) (new Count X) and CFRA oppositional 19 retaliation (Count III). Plaintiff alleges that Plaintiffs filing of this action on December 7, 2006 20 opposing practices made unlawful under FEHA, CFRA and FMLA has subjected him to retaliation in 21 the form of non-renewal of his employment contract on October 4, 2007. 22 Moreover, based on newly-discovered evidence in the form of Supervisor Watsons foregoing 23 testimony as well as the testimony of former Interim CEO David Culberson in deposition conducted on 24 August 21, 2008, Plaintiff further alleges FEHA oppositional retaliation pursuant to Govt C. 12940(h) 25 (new Count XI) and CFRA oppositional retaliation (Count III) in that Defendants placed him on 26 administrative leave on October 7, 2006 subsequent to his filing of a FEHA/CFRA complaint with the 27 DFEH on July 31, 2006. 28 1. Why It Should be Permitted
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

See discussion in Section II.C.2 above. Defendants will not be prejudiced by the joinder of the above new claims against existing Defendant County. Plaintiff is not a percipient witness having knowledge of any facts regarding Defendant Countys liability for oppositional retaliation under FMLA, CFRA or FEHA, other than what was revealed by Supervisor Watson and Mr. Culberson themselves during their depositions. No further discovery needs to be conducted by Defendants in order to defend against the new claims proposed to be brought against Defendant County. Even if such were the case, Defendants have ready access to Mr. Watson and Mr. Culberson in contrast to Plaintiff who must engage in the formality of deposing them to access their testimony. III. CONCLUSION The foregoing items which Plaintiff seeks to effect via the SAC would promote a complete adjudication of issues arising out of the same nucleus of transactions and occurrences and a resolution of disputes on their merits. At the same time, they do not pose any risk of prejudice or surprise to Defendants. Defendants have had fair notice of the proposed supplemental allegations, the general nature of Plaintiffs disability discrimination and due process claims, and the facts establishing Defendant Countys liability thereunder, since at least January 2008. In light of Cal. Govt. C. 995 et seq., the joinder of Count IX against Defendant County only adds direct liability where indirect liability already exists. There is no need for a continuance of any sort.

For the foregoing reasons, Plaintiff DAVID F. JADWIN, D.O., respectfully requests that this Court grant him leave to file the Second Amended Complaint.

RESPECTFULLY SUBMITTED on September 2, 2008. /s/ Eugene D. Lee LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: elee@LOEL.com Attorney for Plaintiff DAVID F. JADWIN, D.O.

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

10