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Fesser v. West Linn Police Department

United States District Court, D. Oregon

September 23, 2019




         Plaintiff 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.

         Fesser moves for leave to file a third amended complaint (“TAC”).[1] (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.


         In 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.

         Following 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.

         At the 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.

         Reeves 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.


         On June 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.)

         Around 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.)

         Meanwhile, 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.)

         On 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. ¶ 8.)

         In June 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. ¶ 10.)



         A. Rule 16

         If a 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)).

         B. Rule 15

         After a 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)).

         Prejudice 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) (citation omitted).

         II. ...

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