Cohen v. Arizona Board of Regents ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Cohen, No. CV-21-01178-PHX-GMS 10 ORDER Plaintiff, 11 v. 12 13 Arizona Board of Regents and Raymond Anderson, an individual, 14 15 Defendants. 16 17 18 Before the Court is Plaintiff David Cohen’s Motion for Leave to File Second 19 Amended Complaint (Doc. 44). For the following reasons, the motion is granted. 20 Plaintiff filed this action against Arizona State University, Arizona Board of 21 Regents (“ABOR”), and Raymond Anderson on July 7, 2021, alleging claims for 22 Retaliation under Title VII of the Civil Rights Act and Wrongful Termination. Plaintiff 23 filed a First Amended Complaint in September 2021. On May 31, 2022, the Court granted 24 in part and denied in part a Motion to Dismiss the First Amended Complaint, dismissing 25 Arizona State University from the action. (Doc. 23.) On October 31, 2022, Plaintiff filed 26 the instant motion, asking for leave to file a Second Amended Complaint in response to 27 discussions between the parties about alleged deficiencies in the First Amended Complaint. 28 The Second Amended Complaint removes any request for punitive damages against 1 Defendant ABOR, removes any request for emotional distress damages against ABOR 2 based on Plaintiff’s Title VII and Title IX claims, removes ASU as a Defendant, clarifies 3 that Plaintiff’s Title VII and Title IX claims are only asserted against ABOR, and adds a 4 cause of action for Retaliation under 42 U.S.C. § 1983 against Defendant Anderson. 5 Under Federal Rule of Civil Procedure 15, the Court should grant leave to amend 6 freely “when justice so requires.” Fed. R. Civ. P. 15(a). Generally, courts grant leave to 7 amend freely in the absence of specific reasons “such as undue delay, bad faith or dilatory 8 motive on the part of the movant, repeated failure to cure deficiencies by amendments 9 previously allowed, undue prejudice to the opposing party by virtue of allowance of the 10 amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). 11 Defendants do not argue that any of those reasons apply and prohibit amendment in this 12 case. In their response, they only disagree with Plaintiff’s statements that Defendants have 13 “conceded” or “confirmed” that amendment would not be futile. Defendants instead state 14 that “for the limited purpose of the motion for leave to amend, . . . they would not argue 15 futility.” (Doc. 45 at 2.) They further explain that they do not believe the § 1983 claim 16 against ABOR can survive a motion to dismiss because ABOR is not a “person” that can 17 be sued for damages in such a claim. See, e.g., Unknown Party v. Ariz. Bd. of Regents, No. 18 CV-18-01623, 2019 WL 7282027, at *19 (D. Ariz. Dec. 27, 2019). Plaintiff asserts that 19 there are several grounds on which he can bring his § 1983 claim, including (1) by brining 20 the claim against Defendant Anderson in his individual capacity, (2) by seeking prospective 21 injunctive relief against ABOR, and (3) by seeking emotional distress damages against all 22 defendants. (Doc. 46.) 23 Ultimately, Defendants’ objection is to the characterization of the parties’ 24 discussions, not to the Plaintiff’s filing of an amended complaint. While the parties debate 25 what types of damages may be sought against which defendants, Defendants do not assert 26 that Plaintiff cannot recover damages of any kind against all Defendants on the newly 27 added claims. Thus, the Court will not deny amendment on futility grounds. Defendants 28 do not raise any other objection to amendment, such as undue delay or bad faith. Therefore, 1 under Rule 15’s liberal standards, Plaintiff should be permitted to amend his complaint. 2 However, because the deadline in the Court’s original scheduling order had passed 3 at the time that Plaintiff filed the Motion for Leave, he must also demonstrate good cause 4 to amend the scheduling order. Fed. R. Civ. P. 16. Defendants do not take a position on 5 whether good cause exists to amend the scheduling order. (Doc. 45 at 2.) Plaintiff 6 apparently learned of the alleged deficiencies in the First Amended Complaint on August 7 29, 2022, when Defendants sent a letter seeking dismissal of Defendant Mr. Anderson and 8 requests for punitive damages. (Doc. 45 at 1-2.) The deadline to amend the pleadings 9 passed on September 24, 2022. (Doc. 37.) Nevertheless, Plaintiff sought to amend the 10 First Amended Complaint on October 31, 2022, in an attempt to cure the alleged 11 deficiencies. Because this motion was filed one month after the deadline in response to 12 issues raised by Defendants, good cause exists to amend the scheduling order. This is 13 especially so because Defendants did not raise these issues in their previous Motion to 14 Dismiss the First Amended Complaint. Moreover, because the scheduling order has since 15 been vacated and the parties are directed to submit a new proposed case management order 16 after the entry of this Order, the practical effect of amending the scheduling order at this 17 stage to allow for amendment is minimal. 18 CONCLUSION 19 Accordingly, 20 IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to File Second 21 Amended Complaint (Doc. 44) is GRANTED. The Second Amended Complaint shall be 22 filed no later than May 12, 2023. 23 IT IS FURTHER ORDERED that the parties shall submit a new proposed Case 24 Management Order within 30 days of the entry of this Order, as outlined in the Court’s 25 Order at Doc. 52. 26 / / / 27 / / / 28 1 IT IS FURTHER ORDERED directing the parties to use the above caption for all 2|| future filing unless modified by the filing of the Second Amended Complaint or by Court || order. 4 Dated this 9th day of May, 2023. ° Wars ) 6 A Whacrsay Fotos 7 Chief United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-