ESTATE OF JIMMA PAL REAT, JAMES PAL REAT, REBECCA AWOK DIAG, RAN PAL, CHANGKUOTH PAL, JOSEPH KOLONG, Plaintiffs,
JUAN JESUS RODRIGUEZ, individually, and, CITY AND COUNTY OF DENVER, Defendants.
ORDER ON MOTION TO AMEND
MICHAEL E. HEGARTY, Magistrate Judge.
Before the Court is Plaintiffs' Motion for Leave to File Second Amended Complaint with Certificate of Conferral and Request for Oral Argument [filed December 19, 2013; docket #137]. Pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C. Colo. LCivR 72.1C, the matter has been referred to this Court for disposition [docket #139]. The matter is fully briefed,  and oral argument would not materially assist the Court in its consideration of this matter. Thus, the Court denies Plaintiffs' request for oral argument. For the reasons that follow, the Court GRANTS Plaintiffs' Motion to Amend.
In the early morning hours of April 1, 2012, Juan Jesus Rodriguez, a 911 emergency call operator with the City and County of Denver, received a 911 call placed by Ran Pal. During the call, Mr. Rodriguez learned that Ran Pal had been driving a vehicle with his brother Jimma Pal Reat and two others on South Sheridan Boulevard in Denver and had been attacked by occupants of another vehicle. During the call, Ran Pal ended up driving to a home in nearby Lakewood, Colorado and parked there. Despite Ran Pal's protestations, Rodriguez convinced him to drive back to Denver, telling Ran Pal that this was the only way for Denver police to take a report on the incident. Ran Pal ultimately ended up back on South Sheridan Boulevard, the same street on which the original confrontation occurred, albeit more than a dozen blocks away. Minutes after parking the car in anticipation of Denver police arriving to take a report, the attacking vehicle returned, and Jimma Pal Reat was fatally shot by one of its occupants.
On September 24, 2012, Plaintiffs filed a complaint pursuant to 28 U.S.C. § 1983 against Juan Jesus Rodriguez and the City and County of Denver ("the City"). Plaintiffs then filed a First Amended Complaint on November 9, 2012 asserting four claims against Mr. Rodriguez and one claim against the City. Against Mr. Rodriguez, Plaintiffs asserted claims for (1) violation of equal protection and due process under the Fourteenth Amendment; (2) wrongful death; (3) negligent infliction of emotional distress; and (4) intentional infliction of emotional distress. Against the City, Plaintiffs asserted a claim for deliberately indifferent policies, practices, customs, training, supervision, ratification, and acquiescence against the City. On June 17, 2013, the District Court dismissed without prejudice the equal protection and the substantive due process claims against Mr. Rodriguez (insofar as the due process claim was based on a special relationship between Mr. Rodriguez and the Plaintiffs). The remaining claims against Mr. Rodriguez were permitted to proceed, including a substantive due process claim under the state-created danger theory. The Court also dismissed without prejudice the claim against the City.
The present Motion for Leave to File Second Amended Complaint seeks to reassert the claim against the City based on newly discovered evidence.
Rule 15 of the Federal Rules of Civil Procedure provides that, following a 21-day period for service of the original pleading or service of a responsive pleading or Rule 12 motion, a party may amend its pleading only by leave of the court or by written consent of the adverse party. Fed.R.Civ.P. 15(a) (2013). Rule 15 instructs courts to "freely give leave when justice so requires." Id. "If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962).
The grant or denial of leave is committed to the discretion of the district court. See Duncan v. Manager, Dep't of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005). Leave to amend should be refused "only on a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment." Id. ; see also Foman, 371 U.S. at 182.
The City contends that the Motion for Leave to File Second Amended Complaint should be denied because (1) it is barred by the law of the case; (2) it is futile; and (3) there was undue delay in filing the Motion that prejudices the City. The Court will address each of these arguments in turn.
I. Law of the Case
Plaintiffs' claim against the City centers on its response, or lack of response, to Mr. Rodriguez's handling of a 911 call in February 2012. In its June 17, 2013 Order, the District Court concluded that Plaintiffs had failed to show deliberately indifferent training and supervision because, among other reasons, "[t]here [was] no allegation or other indication that the February 2012 incident actually resulted in a violation of anyone's constitutional rights." (Docket #111, p. 11.) The City contends that this statement, which is now part of the "law of the case, " precludes a finding of deliberate indifference. See United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013) ("Under the law of the case' doctrine, when a court rules on an issue, the ruling should continue to govern the same issues in subsequent stages in the same case.'") (quoting Arizona v. California, 460 U.S. 605, 618 (1983)).
To establish municipal liability on a failure to train theory, a plaintiff must demonstrate that the municipal action or inaction was taken with "deliberate indifference" as to its known or obvious consequences. Bd. of Cnty. Comm'r of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 407 (1997). "The deliberate indifference standard may be satisfied when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm." Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). Thus, ...