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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1 WO NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ed E Alonzo, No. CV-17-00836-PHX-JJT Plaintiff, 10 11 v. 12 ORDER Akal Security Incorporated, 13 Defendant. 14 15 At issue is Plaintiff’s Amended Complaint (Doc. 26) and failure to respond to 16 Defendant’s Partial Motion to Dismiss Counts I and III of Plaintiff’s Complaint or, in the 17 Alternative, Partial Motion for Summary Judgment (Doc. 19). The Court twice granted 18 Plaintiff’s Motions for Extension of Time (Docs. 23, 25), giving Plaintiff leave to file the 19 Response to Defendant’s Motion by June 19, 2017. The twice-extended date has now 20 passed, and no Response has been filed. 21 First, as for Plaintiff’s proposed Amended Complaint (Doc. 26), a party may 22 amend a complaint once as a matter of course within 21 days after serving it, or within 21 23 days of service of, among others, a Rule 12(b)(6) motion. Fed. R. Civ. P. 15(a). In all 24 other circumstances, absent the opposing party’s written consent, a party must seek leave 25 to amend from the court. Fed. R. Civ. P. 15(a)(2). Although the decision whether to grant 26 or deny a motion to amend is within the trial court's discretion, “Rule 15(a) declares that 27 leave to amend shall be freely given when justice so requires.” Foman v. Davis, 371 U.S. 28 178, 182 (1962) (citation and internal quotations omitted). “In exercising its discretion 1 with regard to the amendment of pleadings, a court must be guided by the underlying 2 purpose of Rule 15–to facilitate a decision on the merits rather than on the pleadings or 3 technicalities.” Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (citation and 4 internal quotations omitted). 5 However, the policy in favor of allowing amendments is subject to limitations. 6 After a defendant files a responsive pleading, leave to amend is not appropriate if the 7 “amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, 8 or creates undue delay.” Madeja v. Olympic Packers, 310 F.3d 628, 636 (9th Cir. 2002) 9 (citation and internal quotations omitted). “Futility alone can justify the denial of a 10 motion for leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003). 11 Here, Defendant has already answered Plaintiff’s prior Complaint (Doc. 20), and 12 the period in which Plaintiff could have amended the Complaint as a matter of course has 13 passed. Plaintiff never sought an extension to the deadline for amending the Complaint as 14 a matter of course provided by Rule 15(a). As a result, absent Defendant’s written 15 consent, Plaintiff was obligated to file a motion to amend demonstrating that the 16 proposed amendments are not futile and do not cause undue delay or otherwise prejudice 17 Defendant. 18 In addition, Local Rule 15.1(a) requires a party moving for leave to amend a 19 complaint to attach a copy of the proposed amended complaint as an exhibit to the 20 motion, “which must indicate in what respect it differs from the pleading it amends, by 21 bracketing or striking through the text to be deleted and underlining the text to be added.” 22 Plaintiff’s proposed amended Complaint (Doc. 26) does not comply with these 23 provisions. The Court must therefore strike the proposed Amended Complaint (Doc. 26) 24 from the docket. 25 Second, as for Plaintiff’s failure to respond to Defendant’s pending, dispositive 26 motion, the filing of a proposed Amended Complaint does not obviate the requirement to 27 respond to a pending Motion, particularly where, as here, Plaintiff makes no effort to 28 explain how the proposed Amended Complaint addresses the defects identified in -2- 1 Defendant’s Motion, and Defendant’s Motion is also one for summary judgment—which 2 is not solely dependent on the allegations in the Complaint in any case. The Court 3 therefore cannot begin to construe the proposed Amended Complaint as a Response to 4 Defendant’s Motion to Dismiss and for Partial Summary Judgment. Accordingly, 5 Defendant is entitled to summary disposition of its Motion (Doc. 19) under Local Rule 6 7.2(i), and the Court will dismiss Counts I and III of the Complaint, as Defendant’s 7 Motion requests. Count II of the Complaint (Doc. 1), in which Plaintiff seeks unpaid 8 overtime wages under the Fair Labor Standards Act and to which Defendant has already 9 filed an Answer (Doc. 20), remains pending. 10 11 IT IS THEREFORE ORDERED striking Plaintiff’s Amended Complaint (Doc. 26). 12 IT IS FURTHER ORDERED granting Defendant’s Partial Motion to Dismiss 13 Counts I and III of Plaintiff’s Complaint or, in the Alternative, Partial Motion for 14 Summary Judgment (Doc. 19). Counts I and III of Plaintiff’s Complaint are dismissed, 15 and Count II remains pending. 16 Dated this 20th day of June, 2017. 17 18 19 Honorable John J. Tuchi United States District Judge 20 21 22 23 24 25 26 27 28 -3-

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