Lesofski v. Lash et al

Filing 77

ORDER denying 73 Motion for Summary Judgment; Plaintiff shall refile the Second Amended Complaint to reflect the named Defendants in the caption. Signed by Judge David C Bury on 11/19/12.(SMBE)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Edward G. Lesofski,
Plaintiff,

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v.

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Jarrod Lash, et al.,

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Defendants.

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CV 11-840 TUC DCB

ORDER

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On October 3, 2012, the Court granted in part the Motion for Summary Judgment
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filed by Defendant Arizona School of Acupuncture and Oriental Medicine (ASAOM) and
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individually named Defendants associated with ASAOM. The Court ordered Plaintiff to
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show cause why summary judgment should not be entered on the Defendants’ challenge that
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he is not disabled as defined by the American with Disabilities Act (ADA). The Court
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granted the Motion to Dismiss, with leave to amend, filed by Defendant McKenzie, the Chair
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of the Accreditation Commission for Acupuncture and Oriental Medicine. Finally, the Court
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granted Plaintiff an extension of time to serve the Amended Complaint.
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The Court has now reviewed the Plaintiff’s filing made in response to the OSC and
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finds he has sufficiently supported his claim of disability to survive the ASAOM motion for
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summary judgment. Additionally, the Court has reviewed the Second Amended Complaint,
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and finds it fails to identify the named Defendants in the caption of the case. Rules of
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Practice of the United States District Court for the District of Arizona (LRCiv), Rule
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7.1(a)(3). The Plaintiff shall refile the Second Amended Complaint, nunc pro tunc. There
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are no longer any unserved Defendants in this case.
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On November 7, 2012, the ASAOM Defendants filed a Renewed Motion for

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Summary Judgement. Defendants assert again that Plaintiff is not disabled. This time, the

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Defendants submit evidence that Plaintiff either told them he was not disabled or only told

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them that he was physically disabled. The evidence submitted by the Plaintiff in response

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to the OSC reflects that there is a material issue of fact in dispute regarding the question of

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Plaintiff’s disability, sufficient to dispute the contrary evidence presented in this “renewed”

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motion.

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The remainder of the “renewed” motion for summary judgement is really a motion

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to dismiss. Defendants argue that under any pleading standard, the Plaintiff fails to state a

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claim. (Defendants’ Renewed Motion for Summary Judgment at 6-8.) A Motion to Dismiss

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for failure to state a claim is properly urged pursuant to Fed. R. Civ. P. 12(b)(6). Defendants

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filed an Answer on March 13, 2012. The Defendants may, however, seek a judgment on the

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pleadings under Fed. R. Civ. P. 12(b)(c), but have not done this.

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Accordingly,

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IT IS ORDERED that the Defendants’ Motion for Summary Judgment (Doc. 73)

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is DENIED.
IT IS FURTHER ORDERED that the Plaintiff shall refile the Second Amended

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Complaint to reflect the named Defendants in the caption.

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DATED this 19th day of November, 2012.

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