Smith v. Dunleavy et al

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DENALI NICOLE SMITH, )
)
Plaintiff, )
)
vs. )
)
MICHAEL DUNLEAVY, in his official )
capacity of Governor of the State of Alaska, )
et al., )
) No. 3:19-cv -0298-HRH
Defendants. )
_______________________________________)
O R D E R
Motion to Amend Complaint
Plaintiff Denali Nicole Smith moves to amend her complaint to add three plaintiffs,
substitute the Acting Commissioner of Revenue (Alaska) Mike Barnhill as a defendant in
place of Commissioner Bruce Tangeman, and “to articulate the remedies requested with
greater specificity.”1 The motion is opposed.2 Oral argument has not been requested and is
not deemed necessary.
This case arises out of defendants’ denial of plaintiff’s eligibility for the 2019
Permanent Fund Dividend (PFD). Plaintiff alleges that she was denied eligibility for the
2019 PFD “because she is a woman married to a woman who is a member of the Armed
1Motion for Leave to Amend Complaint at 2, Docket No. 15.
2Docket No. 20.
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Forces of the United States. . . .”3 In her complaint, plaintiff asserts § 1983 due process and
equal protection claims against defendants.
Pursuant to Rule 15(a)(2), Federal Rules of Civil Procedure, absent the consent of an
opposing party, leave of court to amend must be secured. “The court should freely give leave
when justice so requires.” Id. But the court may “deny leave to amend when amendment
would be futile, when it would cause undue prejudice to the defendant, or when it is sought
in bad faith.” Ventress v. Japan Airlines, 603 F.3d 676, 680 (9th Cir. 2010) (citation
omitted). “Futility of amendment can, by itself, justify the denial of a motion for leave to
amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
A scheduling and planning order was entered in this case on December 27, 2019.4
The scheduling order expressly provided that: “[m]otions to amend pleadings, including
motions to add parties, shall be served and filed not later than February 28, 2020.”5 The
instant motion was timely filed, and the court takes seriously its obligation to freely give
leave to amend. However, the instant motion is problematic.6
First, plaintiff seeks to add three plaintiffs, Megan Hodge and her two minor children.
In the proposed amended complaint, plaintiff asserts that Hodge and the two minor children
were denied eligibility for the 2019 PFD because Hodge “is a woman married to a woman
3Complaint at 3, ¶ 4, Docket No. 1.
4Docket No. 13.
5Id. at 6.
6Substituting Acting Commissioner of the Department of Revenue, Mike Barnhill, in
his official capacity as acting commissioner is not one of the problems. Such substitutions
in official capacity suits are automatic. Kentucky v. Graham, 473 U.S. 159, 166 n.11 (1985).
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who is a member of the Armed Forces of the United States. . . .”7 In the proposed amended
complaint, the Hodges assert § 1983 due process and equal protection claims and seek
damages, injunctive, and declaratory relief.
Amendment to add the Hodges as plaintiffs would be futile. First, to the extent that
the proposed amended complaint seeks monetary damages on behalf of the Hodges, such a
claim is futile under 42 U.S.C. § 1983 inasmuch as the defendants are sued in their official
capacities, not individually. Graham, 473 U.S. at 165-66; Will v. Michigan Dept. of State
Police, 491 U.S. 58, 66 (1989). Second, to the extent that the Hodges are seeking payment
of their 2019 PFDs and any appeal fees, such a claim is futile because the Hodges have
already received that relief.8 In other words, this claim is moot. “An exception exists,
however, for controversies that are ‘capable of repetition, yet evading review.’” Hamamoto
v. Ige, 881 F.3d 719, 722 (9th Cir. 2018) (quoting Kingdomware Techs., Inc. v. United
States, 136 S. Ct. 1969, 1976 (2016)). “‘That exception applies only in exceptional
situations, where (1) the challenged action is in its duration too short to be fully litigated prior
to cessation or expiration, and (2) there is a reasonable expectation that the same complaining
party will be subject to the same action again.’” Id. (quoting Kingdomware Techs., 136 S.
Ct. at 1976). Plaintiff’s proposed amended complaint does not adequately plead any such
situation. Indeed, the court doubts that there is any reason to believe that defendants would
continue to fail to pay PFDs under the circumstances of this case or that any such repetition
would avoid review. Here, the proposed amended complaint does not adequately allege the
7Proposed First Amended Complaint at 3-4, ¶¶ 5-6, attached to Motion for Leave to
Amend Complaint, Docket No. 15.
8See Declaration of Anne Weske at 4, ¶ 15, Exhibit A; and Exhibits B and C,
SEALED Declaration of Rebecca H. Cain, Docket No. 27.
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avoidance of mootness as to the Hodges’ claims for injunctive and declaratory relief because
defendants’ alleged conduct is likely to be repeated and avoid review.
In her reply, plaintiff argues that adding the Hodges as plaintiffs would not be futile
because “this action is to enforce the court’s October 12, 2014 order as to Plaintiffs and all
others similarly situated[.]”9 Indeed, the proposed amended complaint is introduced by the
statement: “Plaintiffs, as set forth above, and on behalf of others similarly situated, hereby
complain and allege. . . .”10 In entering a scheduling and planning order, neither the parties
nor the court addressed this case as though it had been brought pursuant to Rule 23, Federal
Rules of Civil Procedure.11 Based upon what is before the court at this point, it appears to
the court that plaintiff is trying to institute a class action without alleging any of the
prerequisites and without identifying the type of class action being brought. Thus, to the
extent that plaintiff is arguing that amending to add the Hodges as plaintiffs would be
appropriate because this is a class action, that argument fails.
Second, plaintiff seeks to amend her complaint “to articulate the remedies requested
with greater specificity.”12 Plaintiff does not explain what exactly this means, but the
proposed amended complaint appears to signal an attempt and purpose to grandly expand the
constitutional claims originally made. By the proposed amended complaint, plaintiff(s)
9Reply to Opposition to Motion for Leave to Amend at 3, Docket No. 23.
10Docket No. 15-2 at 2. Similarly, plaintiff’s original complaint is introduced by the
statement: “Plaintiff, on behalf of herself and others similarly situated, hereby complains and
alleges[.]” Docket No. 1 at 2.
11Defendants continue to believe that “plaintiffs did not bring this case as a class
action . . . under Fed. R. Civ. P. 23.” Opposition to Motion for Leave to Amend Complaint
at 9, Docket No. 20.
12Motion for Leave to Amend Complaint at 2, Docket No. 15.
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would apparently seek to require the production of information about the denial of marriage
licenses by the state, the denial of medical benefits by the state, and the denial of retirement
benefits by the state to persons in same-sex marriages. On the basis of what is presently
before the court, the court is unpersuaded that either plaintiff or the proposed new plaintiffs
would have standing to bring claims based upon a refusal to issue marriage licenses or afford
state employees’ other benefits. Thus, this proposed amendment would be futile.
Plaintiff’s motion to amend is denied. Mike Barnhill, in his official capacity as Acting
Commissioner of the Department of Revenue, State of Alaska, is substituted for Bruce
Tangeman.
DATED at Anchorage, Alaska, this 14th day of February, 2020.
/s/ H. Russel Holland
United States District Judge
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