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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1 WO 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 Edward G. Lesofski, Plaintiff, 9 10 v. 11 Jarrod Lash, et al., 12 Defendants. ) ) ) ) ) ) ) ) ) ) CV 11-840 TUC DCB ORDER 13 On October 3, 2012, the Court granted in part the Motion for Summary Judgment 14 filed by Defendant Arizona School of Acupuncture and Oriental Medicine (ASAOM) and 15 individually named Defendants associated with ASAOM. The Court ordered Plaintiff to 16 show cause why summary judgment should not be entered on the Defendants’ challenge that 17 he is not disabled as defined by the American with Disabilities Act (ADA). The Court 18 granted the Motion to Dismiss, with leave to amend, filed by Defendant McKenzie, the Chair 19 of the Accreditation Commission for Acupuncture and Oriental Medicine. Finally, the Court 20 granted Plaintiff an extension of time to serve the Amended Complaint. 21 The Court has now reviewed the Plaintiff’s filing made in response to the OSC and 22 finds he has sufficiently supported his claim of disability to survive the ASAOM motion for 23 summary judgment. Additionally, the Court has reviewed the Second Amended Complaint, 24 and finds it fails to identify the named Defendants in the caption of the case. Rules of 25 Practice of the United States District Court for the District of Arizona (LRCiv), Rule 26 7.1(a)(3). The Plaintiff shall refile the Second Amended Complaint, nunc pro tunc. There 27 are no longer any unserved Defendants in this case. 28 1 On November 7, 2012, the ASAOM Defendants filed a Renewed Motion for 2 Summary Judgement. Defendants assert again that Plaintiff is not disabled. This time, the 3 Defendants submit evidence that Plaintiff either told them he was not disabled or only told 4 them that he was physically disabled. The evidence submitted by the Plaintiff in response 5 to the OSC reflects that there is a material issue of fact in dispute regarding the question of 6 Plaintiff’s disability, sufficient to dispute the contrary evidence presented in this “renewed” 7 motion. 8 The remainder of the “renewed” motion for summary judgement is really a motion 9 to dismiss. Defendants argue that under any pleading standard, the Plaintiff fails to state a 10 claim. (Defendants’ Renewed Motion for Summary Judgment at 6-8.) A Motion to Dismiss 11 for failure to state a claim is properly urged pursuant to Fed. R. Civ. P. 12(b)(6). Defendants 12 filed an Answer on March 13, 2012. The Defendants may, however, seek a judgment on the 13 pleadings under Fed. R. Civ. P. 12(b)(c), but have not done this. 14 Accordingly, 15 IT IS ORDERED that the Defendants’ Motion for Summary Judgment (Doc. 73) 16 17 is DENIED. IT IS FURTHER ORDERED that the Plaintiff shall refile the Second Amended 18 Complaint to reflect the named Defendants in the caption. 19 DATED this 19th day of November, 2012. 20 21 22 23 24 25 26 27 28 2

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