Macias v. Kaplan-Seikmann ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Jesus M acias, et al., ) No. CV-22-00280-PHX-SPL ) 9 ) 10 Plaintiffs, ) ORDER vs. ) ) 11 ) Drue Kaplan-Seikmann, et al., ) 12 ) 13 Defendants. ) ) 14 ) 15 On December 5, 2022, the Court ruled on Motions to Dismiss filed by four 16 Defendants with respect to Plaintiffs’ First Amended Complaint. (Doc. 60). The Court 17 dismissed all claims against Defendant Arizona Department of Child Safety (“DCS”) and 18 Counts Four, Five, and Eight against Defendant Bonnie Platter with prejudice. (Doc. 60 19 at 17). The Court also dismissed all claims against Defendants Tasha Haggar and 20 Forensic Counseling & Evaluations LLC (“FCE”) with leave to amend. (Doc. 60 at 17). 21 On December 23, 2022, Plaintiffs filed their Second Amended Complaint 22 (“SAC”). (Doc. 62). The SAC reasserts all of the claims dismissed in the Court’s 23 December 5, 2022 Order, including the claims dismissed with prejudice. Footnote 1 of 24 the SAC explains: 25 This Second Amended Complaint is only directed against Defendant Tasha Haggar. Plaintiffs acknowledge that the 26 Court has dismissed their claims against other Defendants. In 27 order to avoid waiver of any appellate rights against those Defendants, Plaintiffs are not amending or removing those 28 claims. Nothing in this Second Amended Complaint is 1 intended to circumvent the Court’s December 5 Order or 2 revive any claims that have been dismissed, with the exception of Plaintiffs’ claims against Defendant Haggar. 3 4 (Doc. 62 at 1 n.1). 5 On January 6, 2022, Defendant FCE filed the pending Motion to Strike, arguing 6 that the SAC should be stricken as it fails to comply with the Court’s December 5, 2022 7 Order by reasserting claims that have been dismissed. (Doc. 68). Plaintiffs respond that 8 the Motion to Strike is unnecessary and moot in light of footnote 1 of the SAC. (Doc. 75). 9 To be clear, Plaintiffs could—and, for ease of the parties and the Court, should— 10 have removed the dismissed claims from the SAC without waiving their appellate rights. 11 See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (“For claims dismissed 12 with prejudice and without leave to amend, we will not require that they be repled in a 13 subsequent amended complaint to preserve them for appeal.”). But even so, this issue 14 could have easily been resolved with minimal or no involvement of this Court; Plaintiffs 15 state that they offered to cooperate in resolving the issues raised by the Motion to Strike, 16 including by offering to stipulate that Plaintiffs’ claims against FCE were dismissed with 17 prejudice, but FCE’s counsel did not respond to Plaintiffs’ offer. The issue having been 18 brought to the Court, the Court need not strike the SAC. Rather, the Court will dismiss 19 the previously dismissed and unamended claims in the SAC for the same reasons stated 20 in the December 5, 2022 Order. 21 IT IS THEREFORE ORDERED that all claims against Defendants Forensic 22 Counseling & Evaluations LLC and the Arizona Department of Child Safety are 23 dismissed, and the Clerk of Court shall terminate them as parties to this action 24 IT IS FURTHER ORDERED that Counts Four, Five, and Eight against 25 Defendant Platter are dismissed. 26 /// 27 /// 28 /// 1 IT IS FURTHER ORDERED that Defendant FCE’s Motion to Strike (Doc. 68) is denied as moot. 3 Dated this 23rd day of January, 2023. 4 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28