United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE.
Michael Fesser (“Fesser”) brings this case
against the West Linn Police Department (“WLPD”),
Terry Timeus (“Timeus”), Tony Reeves
(“Reeves”), Mike Boyd (“Boyd”), and
Mike Stradley (“Stradley”) (collectively,
“Defendants”). Fesser alleges that Defendants
violated his Fourth and Fourteenth Amendment rights by
falsely arresting and imprisoning him. Fesser also claims
malicious prosecution, intentional infliction of emotional
distress, defamation, invasion of privacy, and unlawful
surveillance in violation of 18 U.S.C. § 2511.
moves for leave to file a third amended complaint
(“TAC”). (ECF No. 56.) Fesser seeks to add a First
Amendment retaliation claim and a claim under Monell v.
Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658
(1978), and to substitute the City of West Linn (“West
Linn”) in place of the WLPD. For the following reasons,
the district judge should grant Fesser's motion to add a
First Amendment claim and to substitute the City of West Linn
in place of the WLPD, but deny Fesser's motion to add the
proposed Monell claim.
2016, Fesser worked for a Portland company. During his
employment, Fesser, a black man, complained to his boss about
the company's racially hostile work environment. Fearing
that Fesser might sue him, Fesser's employer asked his
friend Timeus-then Chief of the WLPD-to assess the situation.
Timeus responded by ordering West Linn Police officers to
investigate Fesser for theft.
Timeus' order, Reeves and Boyd conducted a sting
operation. This operation included audio and video
surveillance of Fesser while he was working in Portland.
Reeves and Boyd neither sought nor received a warrant to
search or to arrest Fesser. Although Defendants found no
evidence of criminal conduct, Reeves and Boyd arrested Fesser
as he left work.
time of the arrest, Reeves and Boyd seized Fesser's phone
and other personal items. They took Fesser to the East
Precinct of the Portland Police Bureau and interrogated him.
Following the interrogation, Reeves and Boyd transferred
Fesser to the Multnomah County Department of Corrections. He
was discharged just before midnight, and ordered to appear in
Multnomah County Circuit Court the following Monday. When
Fesser traveled to the courthouse at the designated time, he
was told that no charges were pending against him.
instructed Fesser to return to the WLPD to retrieve his
belongings. When he did so, Reeves and Boyd informed Fesser
that his employment was terminated, and that he was not
permitted to have any contact with his employer.
4, 2018, Fesser sent a tort claim notice to the WLPD. (Decl.
of Paul Buchanan, May 16, 2019 (“Buchanan Decl.”)
¶ 10, Ex. G, ECF No. 44.) West Linn's City Recorder,
City Manager, and Mayor received the notice that same day.
(Buchanan Decl. ¶ 10, Ex. G; Decl. of Paul Buchanan,
Aug. 22, 2019 (“Second Buchanan Decl.”) ¶ 3,
Ex. A, ECF No. 62.) The next day, Fesser's counsel
received a letter from an insurance company that
“provides liability coverage for the City of West
Linn.” (Buchanan Decl. ¶ 11, Ex. H.) This letter
stated that the company had received the notice and had
started investigating Fesser's allegations. (Buchanan
Decl. ¶ 11, Ex. H.)
a month later, Fesser filed a complaint against Defendants in
Multnomah County Circuit Court. (ECF No. 1.) Defendants
removed this case to federal court. (ECF No. 1.) Following a
Rule 16 conference, the Court set February 15, 2019, as the
deadline to add parties or claims. (ECF No. 12.) On February
8, 2019, the Court granted an unopposed motion to extend the
discovery and dispositive motion deadlines, but the parties
did not seek to extend the deadline to amend the pleadings.
(ECF No. 22.) Following additional extensions, the fact
discovery deadline expired on September 13, 2019, and the
dispositive motion deadline is set for November 14, 2019.
(ECF No. 46.)
on September 28, 2018, Fesser asked Defendants to produce all
documents related to complaints of race discrimination
involving the WLPD. (Buchanan Decl. ¶ 2.) Defendants
responded by producing documents from an internal
investigation of WLPD officer Tom Newberry's
(“Newberry”) inflammatory social media posts.
(Buchanan Decl. ¶ 2.) Defendants did not produce a
grievance filed by Newberry against the WLPD. That grievance
alleged that WLPD leadership knew of and participated in
Newberry's posts. (Buchanan Decl. ¶ 3.) Through
independent research, Fesser located a copy of an arbitration
opinion resulting from Newberry's grievance. (Buchanan
Decl. ¶ 4.) The arbitrator concluded that the WLPD's
top management viewed and supported Newberry's posts.
(Buchanan Decl. ¶ 5.)
March 26, 2019, Fesser served a subpoena on the attorney who
represented West Linn in connection with Newberry's
grievance. (Buchanan Decl. ¶ 7.) Fesser received
documents responsive to this request on April 5, 2019.
(Buchanan Decl. ¶ 7.) According to Fesser, these
documents show that WLPD management viewed and engaged with
social media posts that painted black people “as
enemies of the police and mocked notions of probable cause
and limitations on police power.” (Buchanan Decl.
2019, Fesser took Stradley's and Timeus' depositions.
(Decl. of Paul Buchanan, July 1, 2019, (“Third Buchanan
Decl.”) ¶ 8, ECF No. 57.) In his deposition,
Timeus stated that the WLPD does not have a policy governing
investigation of crimes outside of West Linn. (Third Buchanan
Decl. ¶ 8.) Stradley and Timeus could not identify
another incident in which the WLPD investigated a claim of
employee theft outside of West Linn. (Third Buchanan Decl.
¶ 8.) Timeus also acknowledged that he knew about
Fesser's complaints of workplace racial discrimination
before Defendants arrested Fesser. (Third Buchanan Decl.
STANDARDS OF REVIEW
party seeks leave to amend after the deadline set by a
scheduling order, he “must first show ‘good
cause'” for amending that order. Ashby v.
Farmers Ins. Co., No. 01-cv-1446-BR, 2007 WL 5479070, at
*2 (D. Or. Sept. 26, 2007) (citing Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992)).
The “good cause standard focuses on the reasonable
diligence of the moving party.” Estep v. Forever 21
Retail, Inc., No. 3:16-cv-02214-SB, 2019 WL 430884, at
*1 (D. Or. Feb. 4, 2019) (citation omitted). “If the
moving party was not diligent, the inquiry should end and the
motion to modify [a scheduling order] should not be
granted.” Id. (quoting Zivkovic v. S. Cal.
Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)).
brief period in which a party may amend as of right, “a
party may amend its pleadings . . . [with] the court's
leave[, ]” and the “court should freely give
leave when justice so requires.” Fed.R.Civ.P. 15(a).
District courts have broad discretion in applying Rule 15.
Morongo Band of Mission Indians v. Rose, 893 F.2d
1074, 1079 (9th Cir. 1990). Five factors guide the exercise
of this discretion: (1) undue delay; (2) bad faith; (3)
repeated failure to cure deficiencies; (4) undue prejudice;
and (5) futility of the amendment. Sonoma Cty. Ass'n
of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117
(9th Cir. 2013) (quoting Foman v. Davis, 371 U.S.
178, 182 (1962)).
to the opposing party “carries the greatest weight and
is the touchstone of the inquiry under Rule 15.”
Cervantes v. Zimmerman, No. 17-cv-1230-BAS-NLS, 2019
WL 1129154, at *13 (S.D. Cal. Mar. 12, 2019) (citations
omitted). “The party opposing amendment bears the
burden of showing prejudice.” Robillard v. Opal
Labs, Inc., 337 F.Supp.3d 962, 967 (D. Or. 2018)