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McCubbin v. Weber County

United States District Court, D. Utah, Northern Division

December 17, 2018

LELAND KIM MCCUBBIN, JR. and DANIEL JOSEPH LUCERO, Plaintiffs,
v.
WEBER COUNTY, OGDEN CITY, CHRISTOPHER ALLRED, in his official capacity, and DOES 1-10 Defendants.

          MEMORANDUM DECISION & ORDER DENYING WEBER COUNTY and CHRISTOPHER ALLRED'S MOTION FOR LEAVE TO AMEND THEIR ANSWER

          CLARK WADDOUPS UNITED STATES DISTRICT JUDGE.

         Defendants Weber County and Christopher Allred (Weber County Defendants) move the court for leave to amend their answer, (ECF No. 55). Because the court concludes that the Weber County Defendants have not established good cause for amendment, the court DENIES the Weber County Defendants' Motion, (ECF No. 152).

         BACKGROUND

         On October 16, 2015, Plaintiffs filed separate complaints alleging a “gang injunction” obtained by Weber County and Ogden City had violated their federal and state constitutional rights. (See ECF No. 2.) In March 2016, the court consolidated the cases. (ECF No. 30.) The court granted Plaintiffs leave to amend their complaints on September 14, 2016, (ECF No. 49), and the Weber County Defendants filed their answer to the Amended Complaint on September 29, 2016. (ECF No. 55).

         On October 11, 2016, the court entered a scheduling order based upon the parties' attorney planning report. (ECF No. 59.) The scheduling order set a February 10, 2017 deadline for the parties to amend their pleadings. (ECF No. 59 at 3.)[1]

         On February 28, 2018, the Weber County Defendants filed a Motion for Leave to Amend Their Answer “to include an additional affirmative defense relating to setoff and apportionment of the injuries allegedly suffered by Plaintiffs.” (ECF No. 152 at 3.) The Weber County Defendants argued that good cause exists to amend due to “the recent settlement between Plaintiffs and Ogden City . . . .” (See ECF No. 152 at 3.) The Weber County Defendants argued that due to this settlement, and because “[t]he claims against Ogden City are nearly identical to the claims against [the] Weber County Defendants, ” “the issue of setoff is now a pertinent matter before the Court since Ogden will be dismissed as a party.” (ECF No. 152 at 3.) The Weber County Defendants also argued that “[s]etoff was not a relevant issue in this suit before Ogden City settled the claims against it independently of Weber County Defendants.” (ECF No. 152 at 3.)

         On March 14, 2018, the Plaintiffs filed their Opposition to the Weber County Defendants' Motion to Amend. (ECF No. 155.) Plaintiffs “oppose[d] [the Weber County Defendants'] motion to amend their answer to add an affirmative defense for two reasons.” (ECF No. 155 at 1.) First, the Plaintiffs argued that “the motion is untimely and there is no ‘good cause' under Rule 16(b) to allow an out-of-time amendment.” (ECF No. 155 at 1.) In support of this argument, the Plaintiffs argued that the Weber County Defendants “were aware or on notice of all the operative facts and law about their proposed defense at the time of the cutoff to amend their answer over a year ago.” (ECF No. 155 at 2.) The Plaintiffs further argued that any implication that the Weber County Defendants “could not have known about their proposed defense until Ogden City actually settled with the Plaintiffs” “is not good cause to amend” because the fact that “there was another independent party facing claims in these cases who could possibly also compensate [the] Plaintiffs is all that” the Weber County Defendants “needed to know to assert their defense.” (ECF No. 155 at 2.) The Plaintiffs' second argument was that “the proposed defense is futile” under both Utah law and “[f]ederal common law.” (See ECF No. 155 at 1.)

         On March 28, 2018, the Weber County Defendants filed their Reply in support of their Motion. (ECF No. 166.) The Weber County Defendants made two arguments in their Reply. (ECF No. 166 at 2.) First, they argued that “[g]ood cause exists to allow the Amended Answer.” (ECF No. 166 at 2.) In support of their first argument, the Weber County Defendants provided:

The settlement of Ogden City completely changes the posture of this suit. The claims against Ogden City were nearly identical to the claims against Weber County Defendants. If Ogden City were to have remained in this suit, any damages awarded would have been apportioned between all Defendants. However, after the settlement this will not happen anymore unless Weber County Defendants show[] they are entitled to a setoff. With Ogden City dismissed as a party, the strategy of this suit necessarily changes for Weber County Defendants, and accordingly move the Court to amend their answer.

(ECF No. 166 at 2.) The Weber County Defendants did not, however, respond to the Plaintiffs' argument that the Defendants “were aware or on notice of all the operative facts and law about their proposed defense at the time of the cutoff to amend their answer over a year ago.” (ECF No. 155 at 2.) That is, the Weber County Defendants did not address why they could not have raised this potential defense before the deadline to amend pleadings. The Weber County Defendants' second argument was that “[a]mending the Answer would not be futile.” (ECF No. 166 at 2.) In support of this argument, Defendants argue that they “have found cases that suggest a setoff is allowed in Section 1983 suits.” (ECF No. 166 at 3.)

         SETOFF

         “Whether a right of contribution exists on behalf of § 1983 defendants who are jointly and severally liable is a complex, unresolved question.” Martin A. Schwartz, Section 1983 Litigation Claims and Defenses, § 16.15 (4th ed., 2017). “Closely related to the issue of contribution, and equally difficult and unsettled, is the effect that should be given to a settlement by one defendant on the liability of a non-settling codefendant when the defendants are jointly and severally liable.” Id. “While 42 U.S.C. § 1983 provides for awards of damages for violations of civil rights, it unfortunately does not address such detailed damages questions” like “settlement setoff.” Goad v. Macon Cty., Tenn., 730 F.Supp. 1425, 1426 (M.D. Tenn. 1989). “However, neighboring 42 U.S.C. § 1988 does at least provide a basic analytical framework for resolving problems such as these.” Id.

         Section 1988 provides a three-step analysis that is summarized as follows. First, “Section 1988 . . . requires courts . . . to determine whether ‘suitable' federal law exists.” Crews v. Cty. of Nassau, 612 F.Supp.2d 199, 209 (E.D.N.Y. 2009) (quoting Mason v. City of New York, 949 F.Supp. 1068, 1077 (S.D.N.Y. 1996)). In other words, with regard to setoff, a court must determine “whether federal law addresses the setoff question, or whether federal law is ‘deficient' in this matter . . . .” Goad 730 F.Supp. at 1427. Second, if federal law is deficient courts must compare “relevant state law” “with principles underlying Section 1983 and 1988.” Crews, 612 F.Supp.2d at 209 (citation omitted). “If there is no inconsistency between these two bodies of law, the state law solution to the problem will be applied.” Id. (citation omitted). Third, “[i]f there is an inconsistency, the state law must be rejected, and [the] court must fashion an appropriate remedy to carry out the congressional purposes behind the civil rights legislation.” Id. (citation omitted).

         “Absent § 1983's specific reference to setoff, courts which have considered the issue have followed two [different] approaches towards resolving the applicable rule of decision.” Banks ex ...


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