Complaint

Initiating Your Police Misconduct Case

Drafting the Complaint

  1. Essentials
  2. Parties
  3. Facts
  4. Claims for Relief
  5. Damages

Amending the Complaint

FRCP 15

  1. Only one change to amend as a matter of course - 21 days after serving or 21 days after responsive pleading or Rule 12 motion has been filed. FRCP 15(a)(1)(A)-(B).
  2. Otherwise, can only amend by stipulation or the court’s leave. FRCP 15(a)(2)
  3. Reach out to opposing counsel to see if they would agree to stipulate for leave to amend (Central District L.R. 7-3 requires meet and confer at least 7 days prior to filing any motions)
  4. Stipulations to Amend
    1. Our office’s practice is to attach the proposed amended complaint with the stipulation
    2. Within the stipulation, it is generally advisable to specify that the Plaintiff(s) shall have x amount of days after the date of the order approving leave to file the amended complaint (instead of a specific date)—that way, you avoid rushing to file or missing the deadline if the Court takes some time to grant the stipulation

Motions to Amend

General reasons

  1. To name defendants
  2. To add defendants
  3. To add plaintiffs
  4. To add claims

Federal Standard

  1. Leave to amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). The Ninth Circuit applies this policy “with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)).
  2. Five factors the Ninth Circuit considers for motion for leave to amend: bad faith, undue delay, prejudice to opposing party, futility of amendment, and whether plaintiff has previously amended complaint. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). Opposing party has the burden of showing the five factors.

California Standard

  1. California Code of Civil Procedure section 473(a)(1) governs amendment of pleadings (but does not expressly permit relation back of amendments). Butler v. Nat’l Cnty. Renaissance of Cal., 766 F.3d 1191, 1201 (9th Cir. 2014)
  2. California Code of Civil Procedure section 474 governs amendment of pleadings to “doe” in defendants and is an exception to the general rule of no relation back. Butler v. Nat’l Cnty. Renaissance of Cal., 766 F.3d 1191, 1201 (9th Cir. 2014).
    1. Section 474 is to be liberally construed. Fireman’s Fund Ins. Co v. Sparks Construction, Inc., 114 Cal. App. 4th 1135, 1143 (2004)
    2. Amended complaint naming “doe” defendants relates back if it: (1) rests on the same general set of facts as the original complaint; and (2) refers to the same accident and same injuries as the original complaint. Barrington v. A.H. Robins. Co., 39 Cal. 3d 146, 151 (1985). PLUS, plaintiff(s) must have been “genuinely ignorant” of the defendants’ true identities at the time the complaint was originally filed and pled so in their original complaint. Butler v. Nat’l Cnty. Renaissance of Cal., 766 F.3d 1191, 1202 (9th Cir. 2014).

Amending after Statute of Limitations has run

  1. Section 1983 does not have its own statute of limitations
  2. Courts apply the forum state’s statute of limitations for personal injury actions, along with the forum state’s law regarding tolling, including equitable tolling, except to the extent the laws are inconsistent with federal law. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004)
  3. Because the SOL is taken from state law, the Court must consider both federal and state law governing relation back and apply the more permissive relation-back standard. Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 1191, 1200 (9th Cir. 2014)
  4. “[I]f an amendment relates back under state law that provides the applicable statute of limitations, that amendment relates back under Rule 15(c) even if the amendment would not otherwise relate back under the federal rules.” Butler, 766 F.3d at 1200.
  5. For cases in California, California state law is the more liberal relation-back standard
  6. Circumstances where courts may deny a Motion to Amend
    1. If you blew the court-set deadline to amend (regardless of whether your statute of limitations has run)
    2. If the timing of the Motion to Amend implies that you will not be able to serve the doe defendants within three years after the original complaint was filed. See Bernson v. Browning-Ferris Indus. of Calif., Inc., 7 Cal. 4th 926, 932 (1994); Cal. Civ. Proc. Code § 583.210(a).

Opposing Motions to Dismiss

  1. Meet and confer requirement: In the Central District, a party must initiate a meet and confer process regarding any contemplated motions at least 7 days prior to the filing of the motion (L.R.7-2). Usually, an initial Motion to Dismiss can be avoided by offering to amend the complaint.
  2. Reoccurring reasons defendants cite in support of motion to dismiss:
    1. Monell Claims: depending on who your judge is, you may or may not lose your Monell claims. However, you can still offer to amend the complaint to add more facts in hopes of correcting any perceived deficiencies by defendants. Usually when we amend the Monell claims, we add a list of prior cases against the municipality in which excessive force was alleged under similar circumstances and the case resulted in a jury award or settlement.
    2. Bane Act Claim: the two main reasons defendants usually cite for dismissal is (1) failure to allege threats, intimidation, or coercion, or (2) failure to allege specific intent. See Guevara v. City of Colton (opposition to Motion for Judgment on the Pleadings and related order) for arguments re specific intent. Some defendants also try to contend that the Bane Act is a survival action that does not survive the death of the person with standing, citing Bay Area Rapid Transit Dist. v. Superior Court, 38 Cal. App. 4th 141 (1995). This is wrong. See Guevara v. City of Colton for more.
    3. Failure to Comply with Government Tort Claims Requirements: This is usually a failure on our end to plead that the plaintiffs have submitted government tort claims in substantial compliance with the statute and that the claims were rejected by the municipality or by operation of law
  4. Standard on review: In deciding a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The court must construe the complaint in the light most favorable to the plaintiff, accept all allegations of material fact as true, and draw all reasonable inferences from well-pleaded factual allegations. Gomper v. VISX, Inc., 298 F.3d 893, 896 (9th Cir. 2002). Conclusory allegations couched as factual allegations are not enough. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
  5. Request Leave to Amend: Courts should “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a). If a Rule 12(b)(6) motion is granted, a “district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks and citations omitted). This should always be requested in our opposition to a MTD in the event the Court finds in favor of defendants.

Opposing Motions for Judgment on the Pleadings

  1. A motion for judgment on the pleadings is “functionally identical” to a Rule 12(b) motion to dismiss; the only major difference is that a Rule 12(c) motion is properly brought “after the pleadings are closed and within such time as not to delay the trial.” Mag Instrument, Inc. v. JS Prods., Inc., 595 F. Supp. 2d 1102, 1106–07 (C.D. Cal. 2008).
  2. All allegations of nonmoving party are accepted as true, denials of moving party are assumed to be false, and all reasonable inferences must be construed in favor of nonmoving party. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989).
  3. The court is only to review all allegations/facts within the four corners of the complaint and anything that it may take to