Theroux v. Food4Less
- Proceeding
- district
- Area
- civil
- Panel
- Larry Alan Burns (author)
Analysis
The court considered an amended complaint filed by a represented plaintiff after the defendant had already answered. The court ordered the amended complaint stricken for procedural non-compliance and noted that the allegations failed to establish Article III standing.
| What the court decided | The model |
|---|---|
Amended complaint stricken“The amended complaint is ORDERED STRICKEN and the Clerk shall remove it from the docket.” | agree with court The court correctly identified that because the defendant had already answered, the plaintiff could not amend as of right under Rule 15(a)(1)(B) and required leave. The court found the filing failed to comply with Civil Local Rule 15.1(b) and was improperly filed as an ex parte motion rather than a noticed motion. Striking the document for failure to comply with local rules and procedural requirements is a proper exercise of the court's authority to manage its docket. |
Sua sponte extension of deadline to seek leave to amend“The Court sua sponte extends the deadline to seek leave to amend or to add parties (see Docket no. 17, J 1) to March 1, 2021.” | agree with court The court exercised its inherent authority to manage the schedule and provide the plaintiff an opportunity to cure the procedural defects identified in the stricken filing. This is a standard case management action. |
The order itself: sound — The order correctly applies the procedural rules regarding amendment after an answer has been filed. It properly identifies the failure to comply with Civil Local Rule 15.1(b) and the improper use of an ex parte motion. The court also correctly applies the Ninth Circuit's en banc decision in Chapman v. Pier 1 Imports to identify the lack of Article III standing in the amended complaint, noting that the plaintiff failed to connect his specific disability to the alleged barriers. The reasoning is sound and supported by the cited authority.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VERN ROBERT THEROUX, JR. Case No.: 20cv1857-LAB (MDD)
12 Plaintiff, ORDER STRIKING AMENDED 13 v. COMPLAINT 14 FOOD4LESS, a California corporation, 15 Defendant. 16 17 18 Plaintiff, who is represented by counsel, filed an amended complaint (Docket 19 no. 19) on February 23, bringing claims under the Americans with Disabilities Act 20 and supplemental state claims. Because Defendant has already filed its answer, 21 amendment requires either the opposing party’s written consent or the Court’s 22 leave. Even if construed as a motion for leave to amend, the motion does not 23 comply with Civil Local Rule 15.1(b), and is not properly filed as an ex parte motion 24 rather than a noticed motion. The amended complaint is ORDERED STRICKEN 25 and the Clerk shall remove it from the docket. 26 The amended complaint also fails to connect Plaintiff’s disability with the 27 barriers he alleges he encountered at Defendant’s property, as is required for 28 Article III standing. See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 947 1 ||(9th Cir. 2011) (en banc). He alleges that his disability relates to limitations on 2 walking, standing, ambulating, sitting, and grasping objects. (Am. Compl., 78.) He 3 || alleges that he “relies upon mobility devices to ambulate,” but does not say what 4 ||those devices are. (/d.) Some of the alleged barriers would affect a person using 5 ||a wheelchair, but not necessarily someone using a different mobility aid. (/d., {| 27.) 6 ||He identifies several irregularities that might affect a mobility-impaired person in 7 |{some way, without saying how they affect him, or whether they affect him at all. 8 || (/d., J] 22-23.) Some of the allegations are entirely conclusory; they merely claim 9 || that the parking area is non-compliant without alleging any facts explaining how or 10 ||/why. (/d., Jf] 24-25.) And some alleged barriers do not appear to be related to 11 ||Plaintiff's disability at all. (/d., J] 27 (alleging a lack of bathroom signage in □□□□□□□□□ □ 12 || The Court is required to raise jurisdictional issues such as standing sua sponte, 13 ||and unless Plaintiff meets his burden of establishing standing, this action is subject 14 ||to dismissal. See Chapman, 631 F.3d at 954. 15 The Court sua sponte extends the deadline to seek leave to amend or to add 16 || parties (see Docket no. 17, J 1) to March 1, 2021. If Plaintiff intends to file such a 17 ||motion, it must be a noticed motion — /.e., he must obtain a hearing time and date 18 || before filing it. The motion must comply with Civil Local Rule 15.1(b). 19 If Plaintiff files an amended complaint, either with the Court's leave or with 20 |}opposing counsel’s written consent, he is reminded that the Clerk issues 21 ||Summonses on electronically-filed complaints, and he need not attach them to his 22 ||complaint. See Electronic Case Filing Administrative Policies and Procedures 23 ||Manual, § 2(d)(1). 24 IT IS SO ORDERED. 25 ||Dated: February 24, 2021 26 ACB, Why 27 Honorable Larry Alan Burns 28 United States District Judge