Zachary Johnson v. County of Kern ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ZACHARY JOHNSON, Case No. 1:20-cv-01062-JLT-EPG 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART AND 13 v. CALLING FOR FURTHER SUBMISSION AS TO DISMISSAL WITH PREJUDICE 14 COUNTY OF KERN, et al., TO AMEND 15 Defendants. (Docs. 27, 37) 16 17 Zachary Johnson is proceeding through counsel in this action against the County of Kern 18 and Donny Youngblood. This matter was referred to a United States Magistrate Judge pursuant 19 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Plaintiff filed a motion seeking to modify the scheduling order and amend the complaint 21 to name six deputies as defendants who had previously been named only as Does. (Doc. 27.) 22 The assigned magistrate judge entered findings and recommendations, recommending that 23 Plaintiff’s motion to amend the complaint be denied and that the Doe Defendants be dismissed 24 without prejudice. (Doc. 37.) Defendants filed objections to the findings and recommendations. 25 Though they agree that the motion to amend should be denied, Defendants argue strenuously that 26 the Doe Defendants should be dismissed with prejudice. (Doc. 38.) Plaintiff did not file 27 objections to the findings and recommendations or a response to Defendants’ objections and the 28 time to do so has expired. 1 According to 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the 2 case. Having carefully reviewed the entire file, the Court concludes that the magistrate judge’s 3 recommendations to deny the motion to modify the scheduling order and amend the complaint are 4 supported by the record and by proper analysis. No party suggests otherwise. 5 The remaining issue is whether the Doe Defendants should be dismissed with or without 6 prejudice. The Court has examined with care the cases cited in Defendants’ objections. Doe 7 defendants were dismissed with prejudice under somewhat similar circumstances in Diamond v. 8 City of Los Angeles, No. CV 15-7064 JAK (AJW), 2016 WL 3180226, at *10 (C.D. Cal. May 10, 9 2016), report and recommendation adopted, No. CV15-07064 JAK (AJW), 2016 WL 3176603 10 (C.D. Cal. June 6, 2016), aff'd, 700 F. App’x 727 (9th Cir. 2017) (“Diamond II”). There, the 11 plaintiff filed an initial lawsuit (“Diamond I”) against the City and County of Los Angeles that 12 was pending for more than a year when it was dismissed for failure to state a claim and failure to 13 timely file a third amended complaint. Id. at *10. The second amended complaint filed in 14 Diamond I contained facts concerning individual Los Angeles Police Department officers and 15 even mentioned one by name, but the plaintiff failed to timely amend his complaint in Diamond I 16 to formally add those individuals as defendants. Id. at *8. Instead, he filed Diamond II and 17 named the individual defendants as Does. Id. at *9. Yet, in the first ten months Diamond II was 18 pending, the plaintiff did not amend the complaint to specifically name the Doe defendants, 19 request discovery to learn their identities, or take any other discernible steps to prosecute the 20 action against them. Id. at *8. This was even though plaintiff “ha[d] or should have had access to 21 the names of at least some of the Doe defendants before he filed his complaint.” Id. Under the 22 circumstances before it and having previously warned Plaintiff that dismissal for failure to 23 prosecute was a possibility, the Diamond II court deemed it appropriate to dismiss the Doe 24 defendants with prejudice under Rule 41. Id. at *11. 25 The procedural history of the present case is set forth in detail in the findings and 26 recommendations. (Doc. 37 at 1–4.) Pertinent here are the following facts drawn from that 27 summary. The pleading amendment deadline was January 15, 2021. (Id. at 3.) That deadline 28 passed without any amendments. (Id.) Although the case was removed to this Court on July 31, 1 2020, (Doc. 1.), Plaintiff did not commence discovery in earnest until April 2021. (Doc. 37 at 1.) 2 In May and June 2021, Plaintiff engaged in discovery regarding the identities and participation of 3 the individual defendants, including taking their depositions. (Id. at 4.) Pursuant to a stipulation, 4 the expert discovery deadline was extended by two months to December 12, 2021. (Id.) At no 5 time during 2021 did Plaintiff request an extension of the amendment deadline. Plaintiff then 6 filed his motion to modify the scheduling order and to amend the complaint on March 24, 2022, 7 indicating that it was an oversight that the individual defendants were not earlier substituted in 8 place of the Doe defendants and contending that good cause to modify the schedule exists 9 because Plaintiff did not discover the names of the individual defendants until well after the 10 pleading amendment deadline. (See id. at 8.) 11 Considering these facts, the magistrate judge concluded that Plaintiff failed to show 12 diligence to seek amendment and to discover this case and therefore that he failed to show good 13 cause to modify the scheduling order. (Id.) Among other things, the magistrate judge reasoned 14 that Plaintiff could have begun discovery earlier, so that he could have timely identified the 15 individual defendants; absent that, he should have recognized that he would not be able to do so 16 in time and therefore should have asked for an extension of the pleading amendment deadline. 17 (Id. at 7.) Nor did Plaintiff seek an extension of the deadline as non-expert discovery was ending 18 or when the Court considered the parties’ stipulation to modify the expert discovery deadlines. 19 (Id. at 7–8.) Finally, even though Plaintiff knew of the deputies’ identities in mid-2021, he 20 waited until March 2022 to seek to formally add them to the case. (Id. at 8.) In sum, Plaintiff did 21 not act with requisite diligence regarding discovery or amendment of the complaint. That said, 22 Plaintiff did conduct discovery as to the individual defendants, including taking depositions of 23 five of the deputies Plaintiff now seeks to add as defendants. (Id. at 4.) Therefore, while there 24 are common elements between this case and Diamond II, the circumstances are not exactly 25 parallel because Plaintiff has taken at least some steps to prosecute this action as to the Doe 26 Defendants. 27 Nonetheless, the Court is very concerned about the potential consequences of dismissal 28 without prejudice. Doing so would appear to have the operative effect of allowing Plaintiff to 1 | evade the Court’s scheduling order entirely despite Plaintiffs lack of diligence. Defendants make 2 | this point in their opposition, and Plaintiff has thus far not responded. The Court is inclined to 3 | dismiss the Doe Defendants with prejudice, but because no motion requesting this action has been 4 | formally filed, the Court will in an abundance of caution permit Plaintiff an opportunity to 5 || address the issue, Accordingly, and for the reasons set forth above: 6 1. The findings and recommendations entered on June 1, 2022 (Doc. 37) are 7 ADOPTED IN PART. 8 2. Plaintiff's motion to modify the scheduling order and for leave to amend the 9 complaint (Docs. 26, 27) is DENIED. 10 3. The issue of whether the Doe Defendants will be dismissed with or without 11 prejudice will be HELD IN ABEYANCE. 12 4. On or before August 19, 2022, Plaintiff shall file a brief statement indicating 13 whether he intends to oppose dismissal with prejudice. The Court will take up the 14 matter at the pretrial conference, currently scheduled for August 22, 2022, and will 15 discuss the need for any further briefing at that time. 16 7 IT IS SO ORDERED. 1g | Dated: _ August 12, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28