Alonzo v. Akal Security Incorporated

Filing 27

ORDER striking 26 Plaintiff's Amended Complaint and granting 19 Defendant's Partial Motion to Dismiss Counts I and III of Plaintiff's Complaint or, in the Alternative, Partial Motion for Summary Judgment. Counts I and III of Plaintiff's Complaint are dismissed, and Count II remains pending. Signed by Judge John J Tuchi on 6/20/17.(LSP)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ed E Alonzo,

No. CV-17-00836-PHX-JJT
Plaintiff,

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v.

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ORDER

Akal Security Incorporated,

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Defendant.

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At issue is Plaintiff’s Amended Complaint (Doc. 26) and failure to respond to

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Defendant’s Partial Motion to Dismiss Counts I and III of Plaintiff’s Complaint or, in the

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Alternative, Partial Motion for Summary Judgment (Doc. 19). The Court twice granted

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Plaintiff’s Motions for Extension of Time (Docs. 23, 25), giving Plaintiff leave to file the

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Response to Defendant’s Motion by June 19, 2017. The twice-extended date has now

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passed, and no Response has been filed.

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First, as for Plaintiff’s proposed Amended Complaint (Doc. 26), a party may

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amend a complaint once as a matter of course within 21 days after serving it, or within 21

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days of service of, among others, a Rule 12(b)(6) motion. Fed. R. Civ. P. 15(a). In all

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other circumstances, absent the opposing party’s written consent, a party must seek leave

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to amend from the court. Fed. R. Civ. P. 15(a)(2). Although the decision whether to grant

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or deny a motion to amend is within the trial court's discretion, “Rule 15(a) declares that

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leave to amend shall be freely given when justice so requires.” Foman v. Davis, 371 U.S.

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178, 182 (1962) (citation and internal quotations omitted). “In exercising its discretion

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with regard to the amendment of pleadings, a court must be guided by the underlying

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purpose of Rule 15–to facilitate a decision on the merits rather than on the pleadings or

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technicalities.” Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (citation and

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internal quotations omitted).

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However, the policy in favor of allowing amendments is subject to limitations.

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After a defendant files a responsive pleading, leave to amend is not appropriate if the

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“amendment would cause prejudice to the opposing party, is sought in bad faith, is futile,

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or creates undue delay.” Madeja v. Olympic Packers, 310 F.3d 628, 636 (9th Cir. 2002)

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(citation and internal quotations omitted). “Futility alone can justify the denial of a

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motion for leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003).

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Here, Defendant has already answered Plaintiff’s prior Complaint (Doc. 20), and

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the period in which Plaintiff could have amended the Complaint as a matter of course has

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passed. Plaintiff never sought an extension to the deadline for amending the Complaint as

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a matter of course provided by Rule 15(a). As a result, absent Defendant’s written

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consent, Plaintiff was obligated to file a motion to amend demonstrating that the

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proposed amendments are not futile and do not cause undue delay or otherwise prejudice

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Defendant.

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In addition, Local Rule 15.1(a) requires a party moving for leave to amend a

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complaint to attach a copy of the proposed amended complaint as an exhibit to the

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motion, “which must indicate in what respect it differs from the pleading it amends, by

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bracketing or striking through the text to be deleted and underlining the text to be added.”

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Plaintiff’s proposed amended Complaint (Doc. 26) does not comply with these

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provisions. The Court must therefore strike the proposed Amended Complaint (Doc. 26)

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from the docket.

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Second, as for Plaintiff’s failure to respond to Defendant’s pending, dispositive

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motion, the filing of a proposed Amended Complaint does not obviate the requirement to

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respond to a pending Motion, particularly where, as here, Plaintiff makes no effort to

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explain how the proposed Amended Complaint addresses the defects identified in

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Defendant’s Motion, and Defendant’s Motion is also one for summary judgment—which

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is not solely dependent on the allegations in the Complaint in any case. The Court

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therefore cannot begin to construe the proposed Amended Complaint as a Response to

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Defendant’s Motion to Dismiss and for Partial Summary Judgment. Accordingly,

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Defendant is entitled to summary disposition of its Motion (Doc. 19) under Local Rule

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7.2(i), and the Court will dismiss Counts I and III of the Complaint, as Defendant’s

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Motion requests. Count II of the Complaint (Doc. 1), in which Plaintiff seeks unpaid

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overtime wages under the Fair Labor Standards Act and to which Defendant has already

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filed an Answer (Doc. 20), remains pending.

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IT IS THEREFORE ORDERED striking Plaintiff’s Amended Complaint
(Doc. 26).

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IT IS FURTHER ORDERED granting Defendant’s Partial Motion to Dismiss

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Counts I and III of Plaintiff’s Complaint or, in the Alternative, Partial Motion for

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Summary Judgment (Doc. 19). Counts I and III of Plaintiff’s Complaint are dismissed,

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and Count II remains pending.

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Dated this 20th day of June, 2017.

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Honorable John J. Tuchi
United States District Judge

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