Buckovetz v. Department of the Navy

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DENNIS M. BUCKOVETZ, Case No.: 18cv2736-MDD-KSC 12 Plaintiff, ORDER GRANTING PLAINTIFF'S 13 v. MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 14 UNITED STATES DEPARTMENT OF THE NAVY, 15 Defendant. [ECF No. 22] 16 17 On December 5, 2018, Plaintiff Dennis M. Buckovetz (“Plaintiff”), 18 proceeding pro se, commenced the instant action against Defendant United 19 States Department of the Navy (“Defendant”) alleging Defendant violated the 20 Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(B). (ECF No. 1). 21 On December 11, 2019, Plaintiff filed a motion requesting leave to file a First 22 Amended Complaint. (ECF No. 22). On December 27, 2019, Defendant filed 23 a response in opposition (ECF No. 25), to which Plaintiff replied (ECF No. 24 28). For the reasons set forth herein, the Court GRANTS Plaintiff’s motion 25 for leave to file a First Amended Complaint. 26 I. LEGAL STANDARD 1 states that if a responsive pleading has already been filed, the party seeking 2 amendment “may amend the party’s pleading only by leave of court or by 3 written consent of the adverse party; and leave shall be freely given when 4 justice so requires.” Fed. R. Civ. P. 15(a). This rule reflects an underlying 5 policy that disputes should be determined on their merits, and not on the 6 technicalities of pleading rules. See Foman v. Davis, 371 U.S. 178, 181-82 7 (1962). Accordingly, the Court must be generous in granting leave to amend. 8 See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 9 1990) (noting leave to amend should be granted with “extreme liberality”); 10 Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). 11 However, courts may deny leave to amend for several reasons, including 12 the presence of bad faith on the part of the plaintiff, undue delay, prejudice to 13 the defendant, futility of amendment, and whether the plaintiff has 14 previously filed an amended complaint. See Ascon Props., 866 F.2d at 1160; 15 McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809 (9th Cir. 1988). The test of 16 futility “is identical to the one used when considering the sufficiency of a 17 pleading challenged under Rule 12(b)(6).” Miller v. Rykoff-Sexton, Inc., 845 18 F.2d 209, 214 (9th Cir. 1988). 19 II. DISCUSSION 20 Plaintiff seeks to amend the “requested relief” portion of his complaint 21 to “address the adequacy of [Defendant’s] search.” (ECF No. 22 at 3). 22 Specifically, he seeks to remove his request to order Defendant “to certify . . . 23 that the disclosed email records include all emails that satisfy the search 24 criteria presented in [his] FOIA” and seeks to add his request to order 25 Defendant to “recover or reconstitute any responsive email records that were 26 deleted from the usmc.mil email accounts identified in [his] 2015 and 2018 1 circumstances surrounding the withholding of responsive records raise 2 questions about whether agency personnel acted arbitrarily or capriciously.” 3 (ECF No. 22-2 at 5). Defendant opposes, contending the amended requests 4 for relief are not permissible in this FOIA action, and therefore, amendment 5 would be futile. (ECF No. 25 at 1). 6 A. Futility 7 First, Plaintiff requests Defendant “recover or reconstitute any 8 responsive email records that were deleted.” (ECF No. 22-2 at 5). Defendant 9 avers that it has no duty under the FOIA to recover deleted documents. 10 (ECF No. 25 at 2-3). In support, Defendant cites a Sixth Circuit case, which 11 found that requiring a “technology expert [to] scan relevant computers and 12 servers for additional information that might have been deleted” is 13 “manifestly not what the [FOIA] intends.” (Id. (citing CareToLive v. FDA, 14 631 F.3d 336, 344 (6th Cir. 2011)). In CareToLive, the Sixth Circuit was 15 addressing the adequacy of the government’s search and noted that while 16 “some of our sister circuits have required that agencies attempt to recover 17 electronic files to respond to certain requests . . . the facts of this case do not 18 require such a search.” CareToLive, 631 F.3d at 343. The Eighth Circuit has 19 explained that “[t]he fact that a document once existed does not mean that it 20 now exists; nor does the fact that an agency created a document necessarily 21 imply that the agency has retained it.” Miller v. U.S. Dep’t of State, 779 F.2d 22 1378, 1384 (8th Cir. 1985). The government is not required by the FOIA to 23 account for deleted documents, said the Eighth Circuit, “if it has made a 24 diligent search for those documents in the places in which they might be 25 expected to be found.” Id. Accordingly, Plaintiff may recover deleted emails 26 if the Court finds Defendant’s initial search was inadequate. See CareToLive, 1 regarding deleted emails is not necessarily futile. 2 Second, Plaintiff seeks “attorney’s fees.” (ECF No. 22-2 at 5). 3 Defendant opposes this amendment because “a pro se litigant may not 4 recover attorney’s fees under the FOIA.” Carter v. Veterans Admin., 780 F.2d 5 1479, 1481 (9th Cir. 1986). In reply, Plaintiff contends “[t]his amendment is 6 sought in the event that [he] engage[s] an attorney to counsel and/or 7 represent [him] in this action.” (ECF No. 28 at 3). Amendment is not futile if 8 Plaintiff were to retain counsel. The Court advises Plaintiff that in order to 9 receive attorney’s fees he must actually hire an attorney to represent him in 10 the action1 and not merely counsel him. See Kay v. Ehrler, 499 U.S. 432, 437 11 (1991) (explaining that a rule authorizing an award “of counsel fees to pro se 12 litigants . . . would create a disincentive to employ counsel whenever such a 13 plaintiff considered himself competent to litigate on his own behalf”). 14 Third, Plaintiff seeks to amend his complaint to request a “written 15 finding” if the Court finds “agency personnel acted arbitrarily or 16 capriciously.” (ECF No. 22-2 at 5). Defendant contends whether the 17 government acted arbitrarily and capriciously is irrelevant to FOIA actions. 18 (See ECF No. 25 at 3). However, section 552(a)(4)(F) provides that 19 “[w]henever the court orders the production of any agency records improperly 20 withheld from the complainant and assesses against the United States 21 reasonable attorney fees and other litigation costs, and the court additionally 22 issues a written finding that the circumstances surrounding the withholding 23 raise questions whether agency personnel acted arbitrarily or capriciously,” 24 25 26 1 In other words, Plaintiff’s attorney would need to file a notice of appearance. Further, Plaintiff would only recover attorney’s fees for work completed after the filing of the notice 1 Special Counsel must determine whether further disciplinary action is 2 necessary. 5 U.S.C. § 552(a)(4)(F)(i). Amendment, therefore, is not 3 necessarily futile because the Court may ultimately “order the production of 4 any agency records” in connection with the dispute and “assess against the 5 United States reasonable attorney fees and other litigation costs.” Id. 6 Pursuant to the FOIA, the Court could then issue “a written finding that the 7 circumstances withholding raise questions [about] whether agency personnel 8 acted arbitrarily or capriciously with respect to the withholding.” Id. 9 B. Remaining Foman Factors 10 Having found that Plaintiff’s amendment is not futile, the Court 11 proceeds to the remaining Foman factors. First, there is no evidence that the 12 proposed amendment will prejudice Defendant. Second, while Plaintiff 13 purportedly seeks leave to amend his complaint to address claims raised in 14 Defendant’s motion to dismiss and answer, which were filed in June and 15 August of 2019, the Court does not find Plaintiff unduly delayed in filing the 16 instant motion. (ECF No. 22 at 2; see also ECF Nos. 9, 14). Following 17 Defendant’s answer, the parties consented to United States Magistrate Judge 18 Mitchell D. Dembin’s jurisdiction for all proceedings in this case, including 19 trial, the entry of final judgment, and all post-trial proceedings on October 20 28, 2019. (ECF No. 16). The Court held a telephonic case management 21 conference on November 18, 2019 and set a briefing schedule later that day. 22 (ECF Nos. 17, 19, 20). Given the procedural posture of the case, it does not 23 appear that Plaintiff delayed in filing the instant motion. Further, Plaintiff 24 has not previously amended his complaint. (See Docket). 25 III. CONCLUSION 26 Upon thorough review of the relevant documents, and after examining 1 complaint is appropriate. Accordingly, the Court GRANTS Plaintiffs 9 || motion for leave to file an a First Amended Complaint. The Clerk of Court is 3 |/instructed to file Plaintiff's First Amended Complaint (ECF No. 22-1) asa 4 ||separate docket entry. 5 IT IS SO ORDERED. Dated: January 7, 2020 Mitel by. [= Hon. Mitchell D. Dembin 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27