(PS) G.M. v. Poole ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 G.M., et al., No. 2:17-cv-02415-TLN-CKD 12 Plaintiffs, 13 v. ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE SECOND 14 ADAM POOLE, et al., AMENDED COMPLAINT 15 Defendants. 16 17 This matter is before the Court pursuant to Plaintiffs G.M., C.M., and A.M.’s 18 (collectively, “Plaintiffs”) Motion to File a Second Amended Complaint. (ECF No. 28.) 19 Defendants California Highway Patrol Officers Adam Poole and Michael Simpson (collectively, 20 “Defendants”) oppose Plaintiffs’ motion. (ECF No. 29.) Plaintiffs have filed a reply. (ECF No. 21 30.) For the reasons set forth herein, Plaintiffs’ Motion to File a Second Amended Complaint is 22 hereby GRANTED. (ECF No. 28.) 23 Plaintiffs are three children of Decedent Christopher Murphy (“Murphy”) who have filed 24 a wrongful death suit against Defendants. (ECF No. 17 at ¶¶ 1–2.) Murphy was involved in a 25 fiery car accident on Interstate 5 North, in Sacramento, California. (Id. at ¶ 17.) Murphy 26 managed to escape the wreckage of the accident. (Id. at ¶ 18.) Defendants arrived at the scene of 27 the accident and found Murphy who was physically injured and disoriented after escaping the 28 wreckage. (Id.) Rather than provide medical care, Plaintiffs allege Defendants placed Murphy in 1 a choke hold, handcuffed, hog-tied, and tased Murphy multiple times. (Id. at ¶ 19.) They further 2 allege Defendants used unknown and excessive force on Murphy in a manner that interfered with 3 his ability to breathe. (Id.) Plaintiffs allege Murphy died as a result of Defendants’ force. (Id. at 4 ¶ 20.) 5 Plaintiffs are three out of Murphy’s five surviving children. (Id. at ¶¶ 3, 6–8.) On 6 November 15, 2017, Plaintiffs initiated the instant action against Defendants. (ECF No. 1.) On 7 September 12, 2019, this Court granted with leave to amend Defendants’ Federal Rule of Civil 8 Procedure (“Rule”) 12(b)(7) motion to dismiss Plaintiffs’ Complaint for failure to join a party 9 under Rule 19. (See ECF No. 16.) This Court concluded that Murphy’s two remaining heirs, 10 G.M. and K.M., are necessary parties to the case. (See id. at 6–7.) As such, the Court found that 11 Plaintiffs must properly serve G.M. and K.M. with a summons and complaint to comply with 12 Rule 19 requirements and California’s wrongful death statute. (Id. at 7.) On October 11, 2019, 13 Plaintiffs filed the operative First Amended Complaint (“FAC”), alleging various state and 14 federal law claims arising from Murphy’s death and naming G.M. and K.M. as plaintiffs to the 15 instant action. (See ECF No. 17.) On November 2, 2019, Plaintiffs served the summons and the 16 FAC on G.M. and K.M., by and through their mother and guardian Brianna Latino, and filed the 17 proof of service with the Court on November 21, 2019. (See ECF No. 19.) 18 Plaintiffs have moved for leave to file a Second Amended Complaint “that names the 19 remaining heirs as nominal defendants in accordance with this Court’s order.” (ECF No. 28 at 3.) 20 Plaintiffs argue that they served G.M. and K.M. pursuant to the Court’s order (see ECF No. 16) 21 and nearly a year has passed with no response. (Id. at 4.) 22 Defendants oppose the motion, asserting that “Plaintiffs have failed to serve the motion to 23 name the remaining heirs as nominal defendants . . . and this deprives them [of] actual notice of 24 the proceeding.” (ECF No. 29 at 2.) Defendants maintain that since “it is not clear that the 25 remaining heirs have been provided with actual notice of the intention to name them as nominal 26 defendants, Plaintiffs’ motion to amend the complaint should be denied.” (Id.) 27 In response, Plaintiffs contend that “Defendants agree that Brianna Latino . . . was the 28 proper person to serve” and “Plaintiffs filed a proof of service that Brianna Latino was personally 1 | served,” meaning that the remaining heirs have been served. (ECF No. 30 at 1-2 (emphasis 2 | omitted).) 3 This Court previously held in its September 12, 2019 Order that to comply with Rule 19 4 | requirements and California’s wrongful death statue, Plaintiffs must properly serve the remaining 5 | heirs — notice alone does not substitute for proper service. (ECF No. 16 at 7 (citing Ruttenberg 6 | v. Ruttenberg, 53 Cal. App. 4th 801, 808 (1997)).). If, after proper service, the remaining heirs do 7 | not wish to participate in the instant action, they “may be named as. . . defendant[s] so that all 8 || heirs are before the court in the same action.” Ruttenberg, 53 Cal. App. 4th at 808. 9 Here, Plaintiffs provided the Court with proof of service of the summons and the FAC to 10 | the remaining heirs, G.M. and K.M, by and through their mother and guardian Brianna Latino, on 11 | November 11, 2019. (See ECF No. 19.) Further, Plaintiffs contend that, as of the filing date of 12 || their motion to amend, “the remaining heirs have not filed or taken any steps to participate in this 13 | litigation.” (ECF No. 28 at 3.) Thus, Plaintiffs are permitted to add the remaining heirs as 14 | nominal defendants because they do not wish to participate in the instant action. See Ruttenberg, 15 | 53 Cal. App. 4th at 808. 16 Accordingly, pursuant to the Court’s September 12, 2019 Order, Plaintiffs’ Motion to File 17 | aSecond Amended Complaint naming G.M. and K.M. as nominal defendants is GRANTED. 18 | (ECF No. 28.) Plaintiffs shall file their Second Amended Complaint no later than fourteen (14) 19 | days from the electronic filing date of this Order. Defendants shall file a responsive pleading no 20 | later than twenty-one (21) days after the electronic filing date of Plaintiffs’ Second Amended 21 | Complaint. 22 IT IS SO ORDERED. 23 | DATED: June 24, 2021 ry /) ) As “ / } 25 — oN Z Troy L. Nunley> . } United States District Judge 27 28