MOTION TO AMEND COMPLAINT

1

Roy Warden, Publisher 1

Arizona Common Sense 2

6502 E. Golf Links Road #129 3

Tucson Arizona 85730 4

[email protected] 5

6

UNITED STATES DISTRICT COURT 7

DISTRICT OF ARIZONA 8

ROY WARDEN,

Plaintiff, IN PRO SE

Vs

RICHARD MIRANDA, etc.,

Defendants.

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Case No. CV-14-2050 TUC (DCB)

MEMORANDUM OF POINTS AND

AUTHORITIES AND AFFIDAVIT

OF ROY WARDEN IN SUPPORT

OF MOTION FOR LEAVE TO

AMEND COMPLAINT PURSUANT

TO FED. R. CIV. P. 15(a)(2)

ORAL ARGUMENT REQUESTED

THE HONORABLE DAVID BURY

9

Plaintiff respectfully submits this Memorandum of Points and Authorities 10

and Affidavit in Support of his Motion for Leave to Amend Complaint. 11

Also submitted: Exhibit One; the Proposed Third Amended Complaint, with 12

underlined new text and stricken text, and Exhibit Two; The Proposed Third 13

Amended Complaint. 14

I. INTRODUCTION 15

The Court should grant Plaintiff’s motion for leave to amend complaint be-16

cause Plaintiff meets the requirements under Fed. R. Civ. P. 15(a)(2) and 17

because Plaintiff is a pro se litigant. 18

19

20

Case 4:14-cv-02050-DCB Document 54 Filed 03/31/16 Page 1 of 8

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II. PROCEDURAL HISTORY 1

Under penalty of perjury, Plaintiff Roy Warden does herein declare, swear 2

and affirm as follows: 3

CWIR1: 4

1. Plaintiff filed an original complaint against Defendants on April 25, 5

2014, (Doc. 1), and filed & served the First Amended Complaint on 6

August 14, 2014. (Doc. 6) 7

2. Defendant Tucson May 1st Coalition for Worker and Immigrant Rights 8

(CWIR) failed to answer complaint and Plaintiff filed for Entry of De-9

fault on October 17, 2014. (Doc. 18) 10

3. On December 10, 2014 the Court denied Entry of Default and found 11

“good cause” to extend Plaintiff’s time to effect service on Defendant 12

CWIR to December 31, 2014. (Doc. 24) 13

4. Accordingly, Plaintiff again served Defendant CWIR by Publication, 14

as directed by the Court. (Doc. 26) 15

5. Defendant CWIR again failed to answer summons and complaint. 16

6. On September 30, 2015 Plaintiff again filed for entry of Default, (Doc. 17

38) which the Court granted on December 12, 2015. (Doc 39) 18

7. Subsequently Plaintiff made inquiry of the readership of Arizona Com-19

mon Sense2 and learned that Defendant CWIR merely served as one of 20

many “front organizations” under direction and control of (former) 21

Pima County Legal Defender Isabel Garcia, a prominent local “pro-22

raza” activist often quoted in the local media as Director of Derechos 23

1 Tucson May 1st Coalition for Worker and Immigrant Rights.

2 Arizona Common Sense, which documents and reports incidents of impropriety

within Pima County legal community, has a readership of some 2,000, including

approximately 1,250 members of the Pima County Bar.


3

Humanos, who has led Arizona’s Open Border movement for several 1

decades. 2

TUCSON CITY OFFICIALS: 3

8. On February 9, 2914 Defendant City of Tucson filed their Initial 4

Disclosure Statement (Doc. 50); subsequently Plaintiff received a 5

written outline and a CD containing the following disclosures: 6

a) “Confidential” Memorandum Subject Guidelines, April 27, 2006. 7

(15-252COT0032 to 39) 8

b) Incident Action Plan for May Day March 2012. (15-9

252COT0002 to 16); 10

c) Letter, March 14, 2012, Medina to Weber. (15-252COT0019); 11

d) Letter, March 14, 2012, Medina to Grey. (15-252COT0020); 12

e) Letter, March 19, 2012, Medina to Grey & Ochoa. (15-13

252COT0029 to 30); 14

f) Tucson Parks and Recreation Rental Permit, March 26, 2012. 15

(15-252COT0025); 16

g) Letter, March 26 2012, Ochoa to Pancho Medina. (15-17

252COT0017 to 18); 18

h) Civic Events Meeting April 10, 2012 Sign in Sheet. (15-19

252COT0026); 20

i) Letter, April 27, 2012, Grey to Medina. (15-252COT0021 to 22); 21

j) Fax Cover Sheet. (15-252COT0023); 22

k) Email Thread, April 27, 2012, between various Tucson City offi-23

cials. (15-252COT0024). 24

9. Item “h” (the April 10, 2012 Civic Events Meeting Sign In Sheet) 25

reveals that newly named Tucson Defendants, Janet Nickell (Tucson 26

City Finance) , and TPD Officers Patterson, Hickman and Beecroft, 27


4

and newly named CWIR3 Defendants Medina, Miles and Teitel-1

baum4, met with newly named Pima County Defendants Faas (Pima 2

County Risk Management), Armstrong (Pima County Facilities 3

Management) and Loeschen5 (Pima County Facilities Management), 4

on April 10, 2012 and conspired to violate Plaintiff’s rights in Ar-5

mory Park, Tucson Arizona on May 1, 2012. 6

10. Moreover; the Confidential” Memorandum Subject Guidelines6, 7

April 27, 2006. (15-252COT0032 to 39) reveals that subsequent to 8

Defendants Miranda and Rankin meeting with Defendant Garcia on 9

April 13, 2006 as set forth in the Third Amended Complaint para-10

graph 36, Defendant Rankin began constructing a legal “strategy” to 11

exclude Plaintiff from Armory Park in express violation of the Ninth 12

Circuit Court of Appeals ruling in Gathright. 13

11. Finally; the newly disclosed evidence reveals Defendant Garcia used 14

her public office as Pima County Legal Defender, and used public 15

property (the snow fence barrier) to further the interests and political 16

agenda of Arizona Border Rights Foundation. Plaintiff intends to 17

submit this evidence to the proper federal and state authorities. 18

19

3 Tucson May 1st Coalition for Worker and Immigrant Rights

4 Teitelbaum and Miles are also believed to be the previously “unnamed defend-

ants” who blocked Plaintiff’s access to Armory Park on May 1st 2012.

5 Pima County Facilities Management also provided the plastic snow barrier fenc-

ing that Defendant CWIR used to temporarily encircle Armory Park during the

CWIR May Day demonstrations from 2007 to 2012.

6 This astonishing document, written several weeks subsequent to the Mike Rankin

Letter dated April 12, 2006 (Exhibit One in All Complaints) might also be called

the “Mike Rankin’s How Do We Violate Gathright to Exclude Warden from

Armory Park Memorandum.”


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III. ARGUMENT 1

Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court should 2

freely give leave [to amend a complaint] when justice so requires.” Fed. R. 3

Civ. P. 15(a)(2). The district court has the discretion to decide whether to 4

grant Plaintiff leave to amend. See Swanson v. U.S. Forest Serv., 87 F.3d 5

339, 343 (9th Cir. 1996); Jordan v. County of Los Angeles, 669 F.2d 1311, 6

1324 (9th Cir.1982), vacated on other grounds, 459 U.S. 810 (1982). In its 7

exercise of this discretion, the court applies Rule 15 to “facilitate [a] decision 8

on the merits, rather than on the pleadings or technicalities.” U.S. v. Webb, 9

655 F.2d 977, 979 (9th Cir. 1981). Furthermore, the court interprets the lan-10

guage for granting amendments under Rule 15 with “extreme liberality.” Id. 11

A. Under the Ninth Circuit Standard Plaintiff Should Be 12

Granted Leave to Amend. 13

Under the Ninth Circuit Standard Plaintiff Should Be Granted Leave to 14

Amend. When deciding whether to grant leave to amend, a court must con-15

sider: (1) whether the amendment was filed with undue delay; (2) whether 16

the movant has requested the amendment in bad faith or as a dilatory tactic; 17

(3) whether movant was allowed to make previous amendments which failed 18

to correct deficiencies of the complaint; (4) whether the amendment will un-19

duly prejudice the opposing party and; (5) whether the amendment is futile. 20

See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 21

2003) (citing Foman v. Davis, 371 US 178, 182 (1962)). The five factors are 22

not considered equally. Prejudice is the most important factor and is given 23

the most weight. Eminence, 316 F.3d at 1052. Therefore, “[a]bsent preju-24

dice, or a strong showing of any of the remaining Foman factors, there exists 25

a presumption under Rule 15(a) in favor of granting leave to amend.” Id. See 26

also Talwar v. Creative Labs, Inc., No. CV 05-3375, 2007 WL 1723609 27

(C.D. Cal. June 14, 2006) (finding the plaintiffs should be granted leave to 28


6

amend because additional discovery would not unduly prejudice the defend-1

ant and the defendant did not make a strong enough showing of bad faith on 2

the part of the plaintiffs or that the plaintiffs requested leave to amend as a 3

dilatory tactic, despite the suspect timing of the filing). The Ninth Circuit 4

has also held that one of the five Foman factors alone is not sufficient to 5

justify the denial of a request for leave to amend. The Ninth Circuit has 6

found that undue delay alone “is insufficient to justify denying a motion to 7

amend” and has “reversed the denial of a motion for leave to amend where 8

the district court did not provide a contemporaneous specific finding of prej-9

udice to the opposing party, bad faith by the moving party, or futility of the 10

amendment.” Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999). 11

As a consequence of documents provided by Defendant Tucson City Offi-12

cials on February 9, 2016, Plaintiff’s proposed complaint amendments con-13

cerns (1) Defendant (CWIR) which is already in default7 and therefore has 14

waived its right to plead or otherwise defend, (Doc. 39; Entry of Default), 15

(2) adds new Defendant Tucson City employees, (15-252COT0026), (3) 16

adds Arizona Border Rights Foundation, (15-252COT0025), and finally (4) 17

adds Pima County Defendants Garcia, Faas, Armstrong, Loeschen and Pima 18

County (15-252COT0026). 19

Plaintiff’s proposed complaint amendment should not unduly prejudice Tuc-20

son City Defendants, but it will interfere with the Court’s Scheduling Order. 21

Plaintiff filed the amendment without undue delay. Rather, Plaintiff filed the 22

amendment in the following fashion: 23

7 See the Court’s order granting Plaintiff’s Request for Entry of Default. (Doc. 39)


7

7. On October 6, 2015, subsequent to the Court entry of Default, Plaintiff 1

made inquiry to 1,250 members of the Pima County Bar who are sub-2

scribers to Arizona Common Sense. 3

8. Plaintiff was informed that Defendant CWIR merely serves as one of 4

many “front organizations” under the direction and control of (former) 5

Pima County Legal Defender Isabel Garcia8, and the Arizona Border 6

Rights Foundation, a not for profit Arizona corporation. 7

9. The Arizona Corporation Commission lists (former) Pima County Le-8

gal Defender Isabel Garcia as Director of the Arizona Border Rights 9

Foundation with an office address listed at P.O. Box 1286, the second 10

of two addresses this Court authorized service of Complaint by Publi-11

cation upon Defendant CWIR. (Doc. 26; 1:20-24) 12

10. The Arizona Corporation Commissioner has no record for Defendant 13

CWIR or “Derechos Humanos.” 14

11. The Clerk of Tucson Business Licenses informed Plaintiff he had no 15

listing for Derechos Humanos or Defendant CWIR. 16

12. Derechos Humanos has its address publically listed at 225 E, 26th 17

Street, South Tucson, the first of two addresses which the court author-18

ized service of complaint upon Defendant CWIR. (Doc. 26; 1:20-24) 19

13. The Arizona Corporation Commission records reveal that between the 20

years 2003-2006, Derechos Humanos received nearly half a million 21

dollars in funding from Arizona Border Rights Foundation. 22

8 (Former) Pima County Legal Defender Isabel Garcia is publically known to direct

“Derechos Humanos,” a local “pro-raza” group advocating permanent open bor-

ders, amnesty, and a quick path to citizenship for the estimated 20 million illegal

aliens now residing in the United States.


8

14. The Arizona Corporation Commission lists Jeffrey A. Imig, 1 South 1

Church Ave, Tucson Arizona, as the statutory agent for Arizona Bor-2

der Rights Foundation. 3

Plaintiff’s request to amend complaint is not made in bad faith or for dilatory 4

reasons. Nor is it futile. Plaintiff requests leave to amend to correctly iden-5

tify the principals who, behind the scenes, directed the activities of Defend-6

ant CWIR on May 1st 2012, the incident date of this action, and who con-7

tinue to operate as Defendant CWIR, now in Default for failure to plead or 8

otherwise defend by order of this Court (Doc. 39) 9

Plaintiff previously amended the complaint by the invitation of this Court 10

(Doc. 29) 11

B. Plaintiff Is a Pro Se Litigant and Should Be 12

Granted Leave to Amend. 13

Courts give special consideration to pro se litigants requesting leave to 14

amend a complaint. “Courts are particularly reluctant to deny leave to amend 15

to pro se litigants.” Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th 16

Cir. 2002) 17

IV. PRAYER 18

Based on the above reasons, Plaintiff respectfully prays this Court to grant 19

Plaintiff’s Motion to Amend Complaint. 20

Further Affiant sayeth not. 21

March 31, 2016 /Roy Warden/ 22

23

Original and one copy filed with the Court on March 31, 2016. I hereby 24

certify that on March 31, 2016, I personally served the attached docu-25

ment, and a copy of the Proposed Second Amended Complaint, and ex-26

hibits, by email, on the following: 27

Baird Greene, Assistant Tucson City Attorney, Baird.Greene@tuc-28

sonaz.gov 29


Documents

MOTION TO AMEND COMPLAINT