2:04-cv-08425 #162

8/6/2019 2:04-cv-08425 #162

1/20

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

TONY WESTAssistant Attorney GeneralANDR BIROTTE, Jr.United States AttorneyJOSEPH H. HUNTVINCENT M. GARVEY

PAUL G. FREEBORNEW. SCOTT SIMPSONJOSHUA E. GARDNERRYAN B. PARKERU.S. Department of JusticeCivil DivisionFederal Programs BranchP.O. Box 883Washington, D.C. 20044Telephone: (202) 353-0543Facsimile: (202) 616-8460E-mail: paul.freeborne@ usdoj.gov

Attorneys for Defendants United Statesof America and Secretary of Defense

UNITED STATES DISTRICT COURTFOR THE CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION

LOG CABIN REPUBLICANS,

Plaintiff,

v.

UNITED STATES OF AMERICA ANDROBERT M. GATES, Secretary ofDefense,

Defendants.

))))))

))))))))))

No. CV04-8425 VAP (Ex)

DEFENDANTS RESPONSE TOPLAINTIFFS SUPPLEMENTALMEMORANDUM OF POINTSAND AUTHORITIES IN

OPPOSITION TO MOTION FORSUMMARY JUDGMENT

DATE: April 26, 2010

TIME: 2:00 p.m.

BEFORE: Judge Phillips

UNITED STATES DEPARTMENT OF JUSTICECIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O.BOX 883,BEN FRANKLIN STATIONWASHINGTON,D.C.20044

(202)353-0543

DEFENDANTS RESPONSE TO PLAINTIFFSSUPPLEMENTAL MEMORANDUM OF POINTSAND AUTHORITIES IN OPPOSITION TO

MOTION FOR SUMMARY JUDGMENT

se 2:04-cv-08425 Document 162 Filed 04/23/10 9 Pages

8/6/2019 2:04-cv-08425 #162

2/20

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

The Courts tentative ruling concluding that Log Cabin Republicans

(LCR) failed to meet its burden of establishing standing is correct and properly

disposes of this action.

Although LCR suggests that its right to sue as an associational plaintiff isbased on the date of the filing of the first amended complaint, and not the date the

action commenced on October 12, 2004 (Doc. 161 at 2: 7), the Court properly

recognized that LCR had the burden of establishing that at least one of its

members had standing to sue in his or her own right as of the date this action

commenced (April 21, 2010 Tentative Minute Order, at 7). Indeed, the case law

makes clear, consistent with the Courts tentative ruling, that the standing of the

original plaintiff is assessed at the time of the original complaint, even if the

complaint is later amended. Schreiber Foods, Inc. v. Beatrice Cheese, Inc. 402

1198, 1202 n.3 (Fed. Cir. 2005) (emphasis in original). Because it is now

undisputed that John Alexander Nicholson was not a member when this action

commenced in 2004, LCR cannot carry its burden, and Defendants are entitled to

summary judgment.

LCR can not carry its burden to establish standing on the basis of ananonymous John Doe. First, as the Court correctly noted, LCR has failed to

adduce any evidence that Doe was actually a member of LCR at the time LCR filed

its initial complaint. LCR now concedes that it has no evidence that John Doe was

a member when this action was commenced (Doc. 161 at 4: 16-18). Second, to

ensure associational standing is established, the Court ordered LCR to identify,by

name, at least one of its members injured by the [Dont Ask, Dont Tell] policy

if it wishes to proceed with this action (Doc. 24, at 17: 9-10) (emphasis added).

LCRs after-the-fact attempt to manufacture standing should be rejected. LCR had

the opportunity to come forward with a named member, as ordered, but failed to do

so. Accordingly, the identification of an anonymous member fails as a matter of



(202)353-0543


MOTION FOR SUMMARY JUDGMENT -1-

8/6/2019 2:04-cv-08425 #162

3/20

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

law. LCR has urged the prompt resolution of this matter. The Court should thus

now promptly dismiss this action pursuant to its tentative ruling.

I.

LCR CANNOT MANUFACTURE ASSOCIATIONAL STANDING

AFTER THE ACTION IS COMMENCED

LCR does not assert any harm to itself; it instead purports to bring this

constitutional challenge to a duly enacted statute based upon asserted harm to its

members. To properly proceed with its challenge, LCR must meet the

requirements of associational standing set forth in Hunt v. Wash. State Apple

Adver. Commn, 432 U.S. 333 (1977), including the requirement that itsmembers

. . . are suffering immediate or threatened injury as a result of the challenged action

of the sort that would make out a justiciable case had the members themselves

brought suit. Id. at 342 (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975))

(emphasis added). This inquiry is especially rigorous when reaching the merits of

[a] dispute would force [the court] to decide whether an action taken by one of the

other two branches of the Federal Government was unconstitutional. Raines v.

Byrd, 521 U.S. 811, 819-20 (1997). The Supreme Court has thus recognized thatthe law of Art. III standing is built on a single basic ideathe idea of separation

of powers[,] and [i]n light of this overriding and time-honored concern about

keeping the Judiciarys power within its proper constitutional sphere, [a court]

must put aside the natural urge to proceed directly to the merits of [a] dispute and

to settle it for the sake of convenience and efficiency.Id. at 820 (quotingAllen

v. Wright, 468 U.S. 737, 752 (1984)). Before this action can proceed, the Court

must [thus] carefully inquire as to whether [LCR has] met [its] burden of

establishing that [its] claimed injury is personal, particularized, concrete, and

otherwise judicially cognizable.Id.

The Courts tentative ruling is correct in recognizing that LCR must [but

has failed to] demonstrate that at least one of its members had standing to sue in hisUNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCHP.O.BOX 883,BEN FRANKLIN STATION

WASHINGTON,D.C.20044

(202)353-0543



8/6/2019 2:04-cv-08425 #162

4/20

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

or her own right as of the date this action commenced on October 12, 2004

(April 21, 2010 Tentative Minute Order, at 7). The tentative ruling correctly and

properly cites to, among other cases, the Supreme Courts decision in Friends of

the Earth, Inc. v. Laidlaw Envtl. Serv., 528 U.S. 167 (2000), which recognized thatbefore a claim can proceed based upon associational standing there must be a

showing that LCR had Article III standing at the outset of the litigation. Id. at

180. Nothing in the Courts March 22, 2006 Order (Doc. 24) or in the cases relied

upon by LCR in its supplemental memorandum allow LCR to file suit and then

later attempt to manufacture standing by identifying individuals not among LCRs

membership on October 12, 2004.

LCRs contention that the dismissal of its original complaint and the filing

of the first amended complaint rendered the original complaint of no legal effect

and obsolete is wrong as a matter of fact and law. (Doc. 161 at 19-20). Rather,

the Courts March 22, 2006 Order allowed LCR to file an amended complaint

correcting the defect in LCRs original complaint, which failed to identify a single

individual who is (1) an active member of the LCR; (2) has served or currently

serves in the Armed Forces; and (3) has been injured by the policy (Doc. 24: 12-14). The Order did so by ordering LCR to identify, by name, at least one of its

members injured by the subject policy if it wishes to proceed with this action (id.

at 17: 9-10) based upon LCRs assertion in its October 12, 2004 Complaint that it

represents members already separated or discharged from the Armed Forces

pursuant to the policy (id. at 17 n. 7 (citing paragraph 9 of Complaint)). The

Court didnot dismiss the action, as LCR suggests (Doc. 161 2: 2-6). Simply put,

this action was not commenced when LCR amended its complaint it was

commenced by filing a complaint with the court. Fed. R. Civ. P. 3.

It is well-established, moreover, that the existence of federal jurisdiction

depends on the facts as they exist when the complaint is filed. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 571 n.4 (1992) (quotingNewman Green, Inc.UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCHP.O.BOX 883,BEN FRANKLIN STATION

WASHINGTON,D.C.20044

(202)353-0543



8/6/2019 2:04-cv-08425 #162

5/20

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

v.Alfonzo-Larrin, 490 U.S. 826, 830 (1989)) (emphasis in original) (plurality op)

It cannot be, as LCR asserts, that standing may be based upon facts that did not

exist at the outset. Id. Rather, [t]he initial standing of the original plaintiff is

assessed at the time of the original complaint, even if the complaint is lateramended. Schreiber Foods, Inc., 402 F.3d at 1202 n.3 (emphasis in original).

Federal litigants thus cannot, as LCR has attempted to do here, scramble to fix

jurisdictional defects by manufacturing jurisdiction after the commencement of

their original action. See Lujan, 504 U.S. at 571 n.4 (rejecting contention that

governments participation in the lawsuit itself could be a basis for standing);

Grupo Dataflux v.Atlas Global Group, L.P., 541 U.S. 567, 574-75 (2004) (change

in partys citizenship after suit is filed cannot cure lack of diversity jurisdiction

when original suit filed); Perry v. Village of Arlington Heights, 186 F.3d 826, 830

(7th Cir. 1999) ([b]ecause standing goes to the jurisdiction of a federal court to

hear a particular case, it must exist at the commencement of the suit; It is not

enough for Perry to attempt to satisfy the requirements of standing as the case

progresses. The requirements of standing must be satisfied from the outset and in

this case, they were not.).The cases on which LCR relies are not to the contrary. In contrast to this

action, the cases cited by LCR involve the addition of new plaintiffs, new claims,

or new allegations in an amended complaint, and an analysis of whether standing

exists in light of those changes.1 See County of Riverside v. McLaughlin, 500 U.S.

44 (1991) (new plaintiffs added by amended complaint); Thomas v. Mundell, 572

F.3d 756 (9th Cir. 2009) (new plaintiffs);Bochese v. Town of Ponce Inlet, 405 F.3d

1 Significantly, LCR, which remains the one and only plaintiff from the date this actioncommenced in October 2004, seeks to create jurisdiction through the amendment of itscomplaint. LCR provides no authority for such a proposition and, indeed, the authority is to thecontrary. Essentially, a plaintiff may correct the complaint to show that jurisdiction does in factexist; however, if there is no federal jurisdiction, it may not be created by amendment. JamesWm. Moore, 3 Moore's Federal Practice 15.14[3], at 15-40 (2010).



(202)353-0543



8/6/2019 2:04-cv-08425 #162

6/20

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

964, 977-78 (l1th Cir. 2005) (new claims);Lynch v. Leis, 382 F.3d 642, 647 (6th

Cir. 2004) (new plaintiff);Jadwin v. County of Kern, No.1:07-CV-00026

-0WW-DLB, 2009 WL 2424565 (E.D. Cal. August 6, 2009) (new parties, claims,

and allegations);

2

Kerr Corp. v. 3M Co., 2006 WL 6005803, at *2 (W.D. Wis.2006) (new counterclaim asserted in amended answer).3 Indeed, the Sixth Circuit

inLynch one of the cases on which LCR places reliance in its supplemental

memorandum declinedto hold that the operative pleading was the third

amended complaint, stating that [a] careful reading ofCounty of Riverside

demonstrates that the second amended complaint was important because it was that

complaint which named three additional plaintiffs who were still in custody at

the time the complaint was filed, and who were the plaintiffs found to have

standing by the Court. 382 F.3d at 647.

Here, by contrast, there is and always has been only one plaintiff, the Log

Cabin Republicans, which must show its standing, if at all, through its membership

as of the date it filed the original complaint. Defendants have no quarrel with the

concept, set forth in the cases cited by LCR, that a party must establish its standing

as of the date when it becomes a plaintiff. That, in fact, is exactly what LCR hasfailed to do, and it is precisely why summary judgment for Defendants is required.4

2 Nevertheless, plaintiffs' motion to file the second amended complaint (Attachment 1hereto) indicates that the pleading added new claims and allegations and added additionaldefendants to an existing claim.

3Focus on the Family v. Pinellas Suncoast Transit Authority , 344 F.3d 1263 (11th Cir.2003), another of LCRs cases, is inapposite for a different reason. There the issue was whether

the plaintiff which sought organizational standing in its own right rather than associationalstanding through its members had shown a sufficient likelihood of future injury to seekprospective relief. In that context, the court observed that the operative pleading was the mostrecent complaint setting forth the most up-to-date factual allegations.

4 Even if the Court were to conclude that LCR could establish standing based upon thedate of the filing of the first amended complaint, LCR still cannot establish standing based uponMr. Nicholson. As we explained in our motion for summary judgment, it is undisputed that Mr.



(202)353-0543



8/6/2019 2:04-cv-08425 #162

7/20

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

II.

UNDER NO CIRCUMSTANCES DOES JOHN DOE CONFER STANDING

Perhaps recognizing this well-established body of law, LCR now asserts that

John Doe was a Log Cabin member before October 12, 2004 (Doc. 161 at 12-13). While this contention implies that LCR recognizes that its associational

standing to sue is determined at the commencement of the litigation, its assertion is

legally and factually flawed. As discussed, the Courts March 22, 2006 Order

specifically and unequivocally ordered LCR to identify,by name, at least one of

its members injured by the [Dont Ask, Dont Tell] policy if it wishes to proceed

with this action (Doc. 24, at 17: 9-10) (emphasis aded). LCR cannot thus rely

upon the anonymous John Doe to confer standing; this is true regardless of when

Doe became a member of LCR.

Remarkably, LCR asserts, without any factual basis, that John Doe was a

Log Cabin member before October 12, 2004 (Doc. 161 at 4: 12-13), but in the

same breath concedes that it lacks evidence to support that assertion. See id. at 4:

16-18 (Log Cabin is attempting to locate evidence to support assertion). At the

summary judgment stage, LCR can no longer rest on . . . mere allegations, butmust set forth by affidavit or other evidence specific facts, Fed. R. Civ. P.

56(e) to establish its standing. Lujan, 504 U.S. at 561. This showing is especially

rigorous where, as here, LCR purports to sue on behalf of someone else. Id. at

562 (emphasis in original). LCRs failure to identify by name a member that could

sue in his own right at the time of the initial complaint by this point puts an end to

the matter. LCR has no right to spring further evidence upon Defendants at the

Nicholson never paid dues to LCR before the filing of the first amended complaint on April 28,2006, or even before his deposition in this case on March 15, 2010 (Doc. 141 at 5; NicholsonDep. at 9:14-10:7, Mar. 15, 2010, Exhibit 2 to Doc. 136), and, accordingly, was not a member ofLCR at the time of the first amended complaint based upon LCRs own articles of incorporation.



(202)353-0543



8/6/2019 2:04-cv-08425 #162

8/20

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

April 26, 2010 hearing, especially when any such evidence would have been within

its control at the time of the filing of initial complaint. The time for any such new

evidence has long passed.

CONCLUSION

LCRs supplemental memorandum only serves to further reinforce why the

Courts tentative ruling is correct, and why this action is the very type of action for

which the Court should refrain from proceeding under its Article III powers.

Facial challenges such as the one LCR brings here are disfavored, because they

run contrary to the fundamental principle of judicial restraint and threaten to

short circuit the democratic process. Washington State Grange v. Washington

State Republican Party, 552 U.S. 442, 450 (2008). That is particularly true here,

where LCR has failed to establish the minimum requirements of associational

standing. For all of these reasons, and those set forth in Defendants memorandum

in support of summary judgment, Defendants are entitled to summary judgment.



(202)353-0543



8/6/2019 2:04-cv-08425 #162

9/20

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

Dated: April 23, 2010 Respectfully submitted,

TONY WESTAssistant Attorney General

ANDR BIROTTE, JRUnited States Attorney

JOSEPH H. HUNTDirector

VINCENT M. GARVEYDeputy Branch Director

/s/Paul G. FreebornePAUL G. FREEBORNEW. SCOTT SIMPSONJOSHUA E. GARDNERRYAN B. PARKERTrial AttorneysU.S. Department of Justice,Civil DivisionFederal Programs Branch20 Massachusetts Ave., N.W.Room 6108Washington, D.C. 20044Telephone: (202) 353-0543Facsimile: (202) [email protected]

Attorneys for Defendants UnitedStates of America and Secretary of

Defense



(202)353-0543


MOTION FOR SUMMARY JUDGMENT

8/6/2019 2:04-cv-08425 #162

10/20

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

LAW OFFICE OF EUGENE LEEEugene D. Lee (SB#: 236812)555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299

Fax: (213) 596-0487email: [email protected]

Attorney for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

FRESNO DIVISION

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN, et al.,

Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG

PLAINTIFF'S NOTICE OF MOTION ANDMOTION FOR LEAVE TO FILE SECONDAMENDED COMPLAINT

Date: October 3, 2008Time: 10:00 a.m.Courtroom: U.S. District Court, Crtrm. 3

2500 Tulare St, Fresno, CAComplaint Filed: January 6, 2007Trial Date: December 2, 2008

se 2:04-cv-08425 Document 162-1 Filed 04/23/10 11 Pages

8/6/2019 2:04-cv-08425 #162

11/20


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Please take notice that on October 3, 2008, at 10:00 a.m., or as soon thereafter as the parties may

be heard, Plaintiff DAVID F. JADWIN, D.O. will and hereby does move this Court U.S. Dist. Ct.,

Bankr. Crtrm., 1300 18th St., Bakersfield, CA, for leave to file the Second Amended Complaint.

For the reasons set forth in the accompanying Memorandum of Points and Authorities and

Declaration of Eugene Lee, Plaintiff respectfully requests that this Court grant it leave to file the Second

Amended Complaint, and for such other relief as may be just.

RESPECTFULLY SUBMITTED on September 2, 2008.

/s/ Eugene D. LeeLAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487email: [email protected] for Plaintiff DAVID F. JADWIN, D.O.

8/6/2019 2:04-cv-08425 #162

12/20


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMORANDUM OF POINTS & AUTHORITIES

I. BACKGROUNDPlaintiff has attempted without success to obtain Defendants stipulation to file the Second

Amended Complaint (SAC) and the revised Second Amended Complaint ("RSAC").

On January 6, 2007, Plaintiff filed the Complaint initiating this action.

On April 24, 2007 and on June 13, 2007, Plaintiff supplemented the Complaint to reflect events

occurring after the date of the last-filed Complaint.

On January 4, 2008, Plaintiff sent the draft Third Supplemental Complaint (TSC) almost

identical to the SAC to Defendants for their review. Defendants never responded.

On January 22, 2008, Plaintiff noted Defendants had not responded. Defendants replied that they

were inclined not to so stipulate but would reconsider subject to certain conditions.

On April 17, 2008, after further discussion between the parties, Plaintiff again sent the draft TSC

to Defendants for their review. Defendants never responded.

On May 4, 2008, Plaintiff again requested Defendants stipulation to filing the TSC. On May 5,

Defendants refused and stated the pleadings are done.

On June 30, 2008, Plaintiff filed with this Court his notice of withdrawal of motion for leave to

file the TSC, stating:

Unless Defendants stipulate otherwise, Plaintiff intends to file a motion for leave to fileand serve the Second Amended Complaint, naming the County of Kern . . . asdefendants in their personal and official capacities under Count Ten [sic] of PlaintiffsComplaint (42 U.S.C. 1983 procedural due process).Doc. 159, 1:24 2:1.

On July 1, 2008, Plaintiff requested Defendants stipulation to filing the SAC. Later that day,

Defendants stated that they refused.

Discovery in this action closed on August 18, 2008, except for depositions per the stipulation and

order of the parties.

On August 29, during the deposition of Philip Dutt, the parties met and conferred regarding

withdrawal of Plaintiffs prior motion for leave to file the Second Amended Complaint so that Plaintiff

could further add additional claims arising out of facts which were newly discovered during the course

of Plaintiffs depositions. Defendants refused to stipulate to the filing of the revised Second Amended

Complaint. Plaintiff therefore had no choice but to bring this motion seeking leave to file the second

8/6/2019 2:04-cv-08425 #162

13/20


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

amended complaint.

II. ARGUMENTPlaintiff seeks to effect the following items with the filing of the SAC:

A. Item 1: Supplement the Complaint regarding events that occurred after the filing ofPlaintiffs second supplemental complaint.

1. Requested Change

Plaintiff filed the Second Supplemental Complaint on June 13, 2007. Plaintiff now seeks to

supplement the Complaint regarding events occurring subsequently, including: (a) Defendant Countys

lifting of Plaintiffs home restriction on April 30, 2007, (b) Defendant Countys non-renewal of

Plaintiffs employment contract on October 4, 2007 and (c) Plaintiffs exhaustion of administrative

remedies. Accordingly, Plaintiff seeks to make additions to the Complaint including the following:

20. Just before Thanksgiving of 2006, Plaintiff confided to Gilbert Martinez, theLaboratory Manager at KMC, that he intended to blow the whistle on KMC toappropriate outside agencies. Days later, Defendant Harris met with Philip Dutt, M.D.,Interim Chair of the Pathology Department at KMC (Dutt), to discuss what steps thePathology Department should take in anticipation of Plantiffs whistleblowing to theseoutside agencies.

27. On April 30, 2007, Defendant County sent a letter to Plaintiff notifying him of itsdecision to lift the home restriction. To date, Plaintiff has received no formal explanationfor the involuntary leave or the restriction to his home.

28. On May 1, 2007, Defendant County sent an email to Plaintiff notifying him of itsdecision not to renew Plaintiffs employment contract, which was not due to expire untilOctober 4, 2007, and to let the contract run out. To date, Plaintiff has received noformal explanation for the decision not to renew his contract.

29. On October 4, 2007, Defendant County failed to renew Plaintiffs employmentcontract, which therefore expired.

30. On August 15, 2008, Ray Watson, Chair of the Board of Supervisors ofDefendant County, testified in deposition that Defendant County had decided during thecourse of several KMC Joint Conference Committee meetings not to renew Plaintiffsemployment contract because he had filed the instant lawsuit.

138. On October 4, 2007, Defendant County failed to renew Plaintiffs employmentcontract, which therefore expired.

142. During the time that Defendants placed Plaintiff on involuntary full-time leave,including the period from December 7, 2006 to October 4, 2007, Defendants effectivelydenied Plaintiff the opportunity to earn Professional Fees as set forth in Article II of theSecond Contract.

149. On October 10, 2007, Plaintiff again filed a supplemented Tort Claims Actcomplaint with the County of Kern, supplemented to reflect events occurring after filingof the supplemented Tort Claims Act complaint on April 23, 2007.

8/6/2019 2:04-cv-08425 #162

14/20


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

153. On October 16, 2007, Plaintiff again filed a supplemented complaint with theDFEH, supplemented to reflect events occurring after filing of the supplementedcomplaint with the DFEH on April 23, 2006.

154. On September 2, 2008, Plaintiff again filed a supplemented complaint with the

DFEH, supplemented to reflect additional claims for retaliation for opposing practicesmade unlawful under CFRA and FEHA which arose after evidence was newlydiscovered subsequent to the filing of the supplemented complaint with the DFEH onOctober 16, 2007.

2. Why It Should be Permitted

Rule 15(d) of the Federal Rules of Civil Procedure provides, in pertinent part:

Upon motion of a party the court may, upon reasonable notice and upon such terms asare just, permit the party to serve a supplemental pleading setting forth transactions oroccurrences or events which have happened since the date of the pleading sought to besupplemented.

A supplemental pleading is used to allege relevant facts occurring after the original pleading was

filed. Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 468. A supplemental pleading is designed to bring the

action up to date and to set forth new facts affecting the controversy that have occurred since the

original pleading was filed.Manning v. City of Auburn (11th Cir. 1992) 953 F.2d 1355, 13591360. A

supplemental pleading may properly allege events occurring after the original complaint was filed and

identify any new parties involved therein. Rule 15(d) plainly permits supplemental amendments to

cover events happening after suit, and it follows, of course, that persons participating in these new

events may be added if necessary. Griffin v. County School Board(1964) 377 U.S. 218, 226227.

Supplemental pleadings can only be filed with leave of court and upon such terms as are just. Glatt v.

Chicago Park Dist. (7th Cir. 1996) 87 F.3d 190, 194. However, supplemental pleadings are favored

because they enable the court to award complete relief in the same action, avoiding the costs and delays

of separate suits. Therefore, absent a clear showing of prejudice to the opposing parties, they are

liberally allowed. See Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 473; Quaratino v. Tiffany & Co. (2nd

Cir. 1995) 71 F.3d 58, 66. The purpose of Rule 15(d) is to promote as complete an adjudication of the

dispute between the parties as is possible. LaSalvia v. United Dairymen of Arizona, 804 F.2d 1113,

1119 (9th Cir. 1986), cert. denied, 482 U.S. 928 (1987).

The supplements sought by Plaintiff promote a complete and efficient adjudication of the

disputes between the existing parties to this action. Item 1 Plaintiffs proposed supplements allege a

series of adverse employment actions taken by Defendants against Plaintiff that were first referenced in

8/6/2019 2:04-cv-08425 #162

15/20


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiff's original and subsequent complaints. For instance, Plaintiffs Second Supplemental Complaint

had alleged in pertinent part:

102. On or about December 7, 2006, Culberson sent a letter addressed to Plaintiff

informing him that he was being placed on involuntary paid administrative leavepending resolution of a personnel matter.

104. On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he still hadyet to be provided any explanation for his involuntary leave or any indication as towhether or when it would end so that he could return to work, (ii) the involuntary leaverequiring him to remain at home by his phone during working hours was threatening toerode his pathology skills, jeopardizing his employability and career as a pathologist,(iii) the involuntary leave was denying him the opportunity to earn income fromprofessional fee billing, and (iv) part-time work was deemed therapeutic for him by hisphysician and that the confinement to his house during working hours was having theopposite effect of severely exacerbating his depression.

105. To date, Plaintiff remains on involuntary leave, with no explanation therefore orany indication as to whether or when it will end.

Plaintiff alleges that these actions constituted a continuing violation and/or a pattern and practice of

discrimination, harassment, and/or retaliation taken against Plaintiff because of his protected

characteristics and activities. If Plaintiff is denied leave to file the SAC, Plaintiff would be forced to file

a new law suit re-alleging most of the same claims contained in this action based on these new adverse

actions. Permitting the supplement would result in a more efficient use of scarce judicial resources.

More importantly, there is no risk of prejudice or surprise to Defendants. First, the supplements

comprise allegations of continuing injury or continuation of the wrongful conduct already alleged in

Plaintiffs original or supplemental complaints. Second, Plaintiff has repeatedly apprised Defendants of

his desire to make the foregoing supplements to his complaint since January 4, 2008, when Plaintiff first

sent Defendants the draft TSC. Defendants initially refused to respond at all, then ultimately refused to

stipulate.

Third, Plaintiff served on Defendants copies of the supplemented complaint he filed with the

Department of Fair Employment & Housing on October 16, 2007 and supplemented Tort Claims Act

claim he filed with the County of Kern on October 10, 2007, each detailing the same supplemental

allegations which Plaintiff now proposes in the SAC.

Fourth, Plaintiffs Initial Disclosure contained a Rule 26 report issued by Plaintiffs forensic

economist which fully disclosed the harm that Plaintiff suffered and expected to suffer because of the

events which Plaintiff now seeks to supplementally allege.

8/6/2019 2:04-cv-08425 #162

16/20


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defendants cannot in good faith claim to be surprised or prejudiced by Plaintiffs proposed

supplements.

B. Item 2: To include an element of Plaintiffs Count VI for disability discriminationadded to Plaintiff's Prima Facie Case by a decision of the California Supreme Courtissued after the filing of this lawsuit.

1. Requested Change

Plaintiff seeks to add Paragraph 125 to allege Plaintiffs ability to perform the essential functions

of his job, which the California Supreme Court found to be an element of Plaintiffs disability

discrimination claim in Green v. State of California, issued by the California Supreme Court on August

23, 2007. Paragraph 125 reads as follows:

125. At all times material here, excluding a portion of the time when he was out onvoluntary full-time medical leave, Plaintiff has been able to perform the essentialfunctions of the employment positions he held with Defendants and each of them, withreasonable accommodation.


Rule 15 provides the parties with flexibility in presenting their claims and defenses. It assures

that cases will be heard on their merits and avoids injustices which sometimes resulted from strict

adherence to earlier technical pleading requirements. Foman v. Davis (1962) 371 U.S. 178, 182; Slayton

v. American Express Co. (2nd Cir. 2006) 460 F.3d 215, 228. Rule 15 reflects the limited role assigned to

federal pleadings: i.e., their purpose is simply to provide the parties with fair notice of the general nature

and type of the pleader's claim or defense. As long as such notice has been provided, the pleadings

should not limit the pleader's claims or defenses.Ibid.; see also Grier v. Brown (N.Dist. Cal. 2002) 230

F.Supp.2d 1108, 1111.

Plaintiffs proposed correction of an omission does not allege any new facts; it arises out of the

same exact nucleus of facts alleged in Plaintiffs original and supplemental complaints filed with the

Court. Simply put, it merely seeks to correct the omission of a legal pleading element required for

Plaintiffs Counts VI through VIII for violation of Californias disability discrimination laws.

Defendants cannot claim to have been denied fair notice of the general nature of Plaintiffs disability

discrimination claims or the alleged facts from which they arise. Permitting the correction would not

prejudice Defendants in any way. Conversely, denying the correction may prevent consideration of

Plaintiffs disability discrimination claims on their merits and result in injustice.

8/6/2019 2:04-cv-08425 #162

17/20


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

C. Item 3: Add already-named and existing Defendants, the County of Kern and IrwinHarris, to Plaintiffs Count IX for 42 U.S.C. 1983 due process violation claim, basedupon events which were already alleged in the Complaint.

1. Requested Change

Plaintiff seeks to amend Count IX (See Paragraph 207 of the SAC) to add Defendants County of

Kern and Irwin Harris to that count. Both Defendants are already named and existing parties and no

joinder of new parties is required under Rule 19. Rather, joinder of a claim against an existing party is

required under Rule 18.


Rule 15 requires that leave to amend should be freely given when justice so requires. Fed. R.

Civ. Proc. 15(a)(2); seeLone Star Ladies Invest. Club v. Schlotzsky's Inc. (5th

Cir. 2001) 238 F.3d 363,

367 (policy favoring leave to amend a necessary companion to notice pleading and discovery.) This

policy is to be applied with extreme liberality.Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003)

316 F.3d 1048, 1051;Moore v. Baker(11th Cir. 1993) 989 F.2d 1129, 1131 (justifying reasons must be

apparent for denial of a motion to amend). Absent prejudice, or a strong showing of any of the other

reasons for denying leave to amend, there exists a presumption under Rule 15(a) in favor of granting

leave to amend.Eminence Capital, LLC v. Aspeon, Inc. (9th

Cir. 2003) 316 F.3d 1048, 1052. While

leave to amend should not be granted automatically, the circumstances under which Rule 15(a)

permits denial of leave to amend are limited. Ynclan v. Department of Air Force (5th Cir. 1991) 943

F.2d 1388, 1391.

The opposing party may claim prejudice from any amendment, such as the expense of

responding to the amended pleading and possible delay in getting to trial; however, expense and delay

are probably not enough by themselves to deny leave to amend. There must be some showing of

inability to respond to the proposed amendment. Likewise, the need for additional discovery is

insufficient by itself to deny a proposed amended pleading. See U.S. v. Continental Illinois Nat'l Bank &

Trust(2nd Cir. 1989) 889 F.2d 1248, 1255; Genentech, Inc. v. Abbott Laboratories (N.Dist. Cal. 1989)

127 F.R.D. 529, 531.

Rule 18(a) expresses a philosophy of great liberality toward entertaining the broadest possible

scope of action consistent with fairness to parties; joinder of claims, parties, and remedies is strongly

encouraged.Lanier Business Products v Graymar Co. (1972, Dist. Md.) 342 F.Supp 1200. A party

8/6/2019 2:04-cv-08425 #162

18/20


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

should be able to join all claims he has against his opponent as matter of course to avoid a multiplicity of

litigation and possible claims ofres judicata at later date.Ibid.

Joinder of Plaintiffs Count IX for 42 U.S.C. 1983 due process violations against Defendants

County and Harris should be permitted. Both Defendants are already named in several of Plaintiffs

Counts and are existing parties in this action. Joinder of Defendant County in County IX is clearly

warranted underMonell v Dept. of Social Services (1978) 436 U.S. 658 and would avoid multiplicity of

litigation and claims ofres judicata at a later date. Joinder of Harris became warranted in light of the

deposition testimony of David Culberson, former Interim CEO of KMC, on August 21, 2008 wherein

Plaintiff learned for the first time of the extent of Dr. Harriss participation in Defendant Countys

decision to place Plaintiff on administrative leave on December 7, 2006 and, subsequently, not to renew

Plaintiffs employment contract.

There is no risk of prejudice or surprise to Defendants. Defendants have had fair notice of the

nucleus of facts underlying Defendant Countys and Harriss liability under Count IX e.g., demotion

of Plaintiff and reduction of his base salary, placement of Plaintiff on involuntary administrative leave

with home restriction, and non-renewal of Plaintiffs contract since at least January 2008 when

Plaintiff sent the draft TSC to Defendants. On June 30, 2008, Plaintiff filed with this Court his notice of

withdrawal of motion to file the TSC, expressly stating therein Plaintiffs intention to seek joinder of

Count IX against Defendant County (Doc. 159). On July 1, 2008, Plaintiff again gave Defendants notice

providing them a copy of the SAC along with a proposed stipulation (which Defendants rejected). With

discovery in this action due to close on August 18, 2008, Defendants had more than a month to conduct

whatever additional discovery they deem necessary in light of the SAC although no additional

discovery should conceivably be necessary to parse out aMonell analysis.

More importantly, Plaintiff is not a percipient witness having knowledge of any facts regarding

Defendant Countys liability underMonell or Dr. Harriss liability for his participation in adverse

employment actions against him, other than what was revealed by Defendants former and current

employees themselves during their depositions. No further discovery needs to be conducted by

Defendants in order to defend against the new claims proposed to be brought against Defendants County

and Harris. Even if such were the case, Defendants have ready access to County witnesses and Harris

himself in contrast to Plaintiff who must engage in the formality of deposing them to access their

8/6/2019 2:04-cv-08425 #162

19/20


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

testimony.

Finally, under Cal. Govt. C. 995 et seq., Defendant County is required to indemnify its

employees against liability for violations alleged in Plaintiffs Count IX as set forth in Plaintiffs initial

complaint filed on January 6, 2008. The joinder of Count IX against Defendant County simply adds

direct liability where indirect liability for individually named employees under Count IX already exists.

D. Item 4: Joinder of new claims for CFRA retaliation (existing Count III), FEHAretaliation (Govt C. 12940(h), new Count XI) and FMLA retaliation (29 U.S.C. 2615(b), new Count X) against Defendant County and Does 1 through 10 basedupon newly-discovered evidence.

1. Requested Change

Plaintiff seeks to amend the complaint to add new Counts X and XI and a new claim for CFRA

retaliation under existing Count III against Defendant County and Does 1 through 10. Defendant County

is an already named and existing party and no joinder of new parties is required under Rule 19. Rather,

joinder of new claims against an existing party is required under Rule 18.

During the course of Plaintiffs deposition of Supervisor Ray Watson on August 25, 2008,

Plaintiff for the first time heard testimony that Defendant County had decided not to renew Plaintiffs

employment contract with the County due to the fact that Plaintiff had initiated this action. Based on this

newly-discovered evidence, Plaintiff requests leave to join new claims against Defendant County and

Does 1 through 10 for FEHA oppositional retaliation pursuant to Govt C. 12940(h) (new Count XI),

FMLA oppositional retaliation pursuant to 29 U.S.C. 2615(b) (new Count X) and CFRA oppositional

retaliation (Count III). Plaintiff alleges that Plaintiffs filing of this action on December 7, 2006

opposing practices made unlawful under FEHA, CFRA and FMLA has subjected him to retaliation in

the form of non-renewal of his employment contract on October 4, 2007.

Moreover, based on newly-discovered evidence in the form of Supervisor Watsons foregoing

testimony as well as the testimony of former Interim CEO David Culberson in deposition conducted on

August 21, 2008, Plaintiff further alleges FEHA oppositional retaliation pursuant to Govt C. 12940(h)

(new Count XI) and CFRA oppositional retaliation (Count III) in that Defendants placed him on

administrative leave on October 7, 2006 subsequent to his filing of a FEHA/CFRA complaint with the

DFEH on July 31, 2006.


8/6/2019 2:04-cv-08425 #162

20/20

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

See discussion in Section II.C.2 above.

Defendants will not be prejudiced by the joinder of the above new claims against existing

Defendant County. Plaintiff is not a percipient witness having knowledge of any facts regarding

Defendant Countys liability for oppositional retaliation under FMLA, CFRA or FEHA, other than what

was revealed by Supervisor Watson and Mr. Culberson themselves during their depositions. No further

discovery needs to be conducted by Defendants in order to defend against the new claims proposed to be

brought against Defendant County. Even if such were the case, Defendants have ready access to Mr.

Watson and Mr. Culberson in contrast to Plaintiff who must engage in the formality of deposing them

to access their testimony.

III. CONCLUSIONThe foregoing items which Plaintiff seeks to effect via the SAC would promote a complete

adjudication of issues arising out of the same nucleus of transactions and occurrences and a resolution of

disputes on their merits. At the same time, they do not pose any risk of prejudice or surprise to

Defendants. Defendants have had fair notice of the proposed supplemental allegations, the general

nature of Plaintiffs disability discrimination and due process claims, and the facts establishing

Defendant Countys liability thereunder, since at least January 2008. In light of Cal. Govt. C. 995 et

seq., the joinder of Count IX against Defendant County only adds direct liability where indirect liability

already exists. There is no need for a continuance of any sort.

For the foregoing reasons, Plaintiff DAVID F. JADWIN, D.O., respectfully requests that this

Court grant him leave to file the Second Amended Complaint.

RESPECTFULLY SUBMITTED on September 2, 2008.

/s/ Eugene D. LeeLAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487email: [email protected] for Plaintiff DAVID F. JADWIN, D.O.

Documents

2:04-cv-08425 #162