George Robert Pettit v. Arizona Board of Regents

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE ROBERT PETTIT,
Plaintiff - Appellee,
v.
ARIZONA BOARD OF REGENTS;
ARIZONA SCIENCE AND
TECHNOLOGY ENTERPRISES, LLC;
JOHN DOE CHANG; J. RUSSELL
NELSON,
Defendants,
and
ELIZABETH D. CAPALDI, Executive
Vice President and Provost,
Defendant - Appellant.
No. 11-17401
D.C. No. 2:05-cv-02922-ROS
MEMORANDUM*
GEORGE ROBERT PETTIT,
Plaintiff - Appellant,
v.
No. 11-17541
D.C. No. 2:05-cv-02922-ROS
FILED
JUN 04 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Thomas S. Zilly, Senior United States District Judge**
for the Western District of Washington, sitting by designation.
ARIZONA BOARD OF REGENTS;
ARIZONA SCIENCE AND
TECHNOLOGY ENTERPRISES, LLC;
JOHN DOE CHANG; J. RUSSELL
NELSON; ELIZABETH D. CAPALDI,
Executive Vice President and Provost,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding
Argued and Submitted May 17, 2013
San Francisco, California
Before: McKEOWN and WATFORD, Circuit Judges, and ZILLY, Senior District
Judge.**
Dr. George Pettit and Defendants appeal from the district court’s partial
judgment in Pettit’s favor following a bench trial on his 42 U.S.C. § 1983 claim.
1. The district court did not abuse its discretion in denying Pettit’s
request for leave to amend his complaint. Under Federal Rule of Civil Procedure
15(a), district courts have “particularly broad” discretion to deny leave to amend
when the plaintiff “has previously amended the complaint.” Ascon Properties, Inc.
v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). Here, Pettit’s request for
leave to amend came two years into the litigation, after Pettit had already amended

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his complaint twice. The First Amendment retaliation claim he sought to add was
based on the same facts he had known throughout the litigation, yet he offered no
justification for the delay. Amendments attempting to add new claims when the
theories and facts supporting them have long been known to the party seeking
amendment are viewed with disfavor. See Royal Ins. Co. of Am. v. Sw. Marine,
194 F.3d 1009, 1016–17 (9th Cir. 1999).
2. The district court correctly concluded that Pettit had not adequately
pleaded a First Amendment retaliation claim or a constitutional liberty-interest
claim. Those claims appear nowhere in the operative First Amended Complaint.
The complaint does contain stray allegations that might have supported those
unpleaded claims, but most of those allegations are contained in unrelated counts
the district court dismissed. The fleeting reference to Pettit’s free speech rights in
paragraph 222 of count IV—the only count that survived dismissal—is insufficient
to state a plausible First Amendment retaliation claim. And the mention of
substantive due process in count IV does not refer to a protected liberty interest,
but rather to the deprivation of Pettit’s asserted property interests in the CRI
Directorship and Dalton Chair.
3. The district court did not clearly err in finding that Pettit and
Defendants lacked a mutual understanding regarding Pettit’s tenure in the CRI

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Directorship. The letter naming Pettit as CRI Director does not guarantee Pettit’s
continued employment in that position, nor does it reference any agreement,
written or otherwise, regarding job security. None of the documentary evidence
suggests that Pettit was ever guaranteed job security by Defendants, and the
testimony at trial is largely silent on whether the parties even discussed Pettit’s
employment status as CRI Director. Pettit points to his own favorable testimony
on the issue, but such evidence merely shows at best that Pettit genuinely believed
he had tenure in the position. That unilateral understanding, without evidence that
Defendants shared the same understanding, is insufficient to establish a property
interest protected by the Due Process Clause. See Gerhart v. Lake County, Mont.,
637 F.3d 1013, 1020 (9th Cir. 2011).
4. We reverse the district court’s conclusion that Pettit had a protected
property interest in the Dalton Chair. The court did not clearly err when it found,
as a factual matter, that Pettit and Defendants shared a mutual understanding that
Pettit would hold the Dalton Chair while he was employed at ASU. But, as a legal
matter, that mutual understanding could not override the clear language of the trust
agreement establishing the Dalton Chair, which expressly stated that, so long as the
CRI was in existence, the CRI Director “shall be the recipient of the chair.” The
CRI was in existence for the entire time that Pettit held the Dalton Chair, and the

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CRI remained in existence at the time Pettit was removed as its Director. As a
result, Pettit’s claim of tenure in the Dalton Chair fails as a matter of law because
such an arrangement would have violated the express terms of the trust agreement.
The parties shall bear their own costs on appeal.
AFFIRMED IN PART; REVERSED IN PART.

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