Andres Gomez v. Ciccero's Pizza

Filing 21

(IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL RE: LACK OF PROSECUTION by Judge Fernando M. Olguin. Response to Order to Show Cause due by 6/16/2017. (vdr)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 16-4451 FMO (FFMx)

Title

Andres Gomez v. Ciccero’s Pizza, Inc., et al.

Present: The Honorable

Date

June 12, 2017

Fernando M. Olguin, United States District Judge

Vanessa Figueroa

None Present

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None Present

None Present

Proceedings:

(In Chambers) Order to Show Cause Re: Lack of Prosecution

Pursuant to the Court’s Order of November 29, 2016 (Dkt. 17), the court granted
defendants’ motion to dismiss, and plaintiff was “granted until December 15, 2016, to file a first
amended complaint[.]” (See id. at 2). Plaintiff was “cautioned that failure to timely file a First
Amended Complaint may result in this action being dismissed without prejudice for failure to
prosecute and/or failure to comply with a court order.” (See id. at 3). As of the filing date of this
Order, a first amended complaint has not been filed. (See, generally, Dkt.). Even though plaintiff’s
First Amended Complaint was due nearly six months ago, the court will give plaintiff one final
opportunity to file a First Amended Complaint.
In addition, plaintiff should note that the court finds merit to defendants’ contention that
plaintiff lacks jurisdiction because defendants “hired [a] licensed CASp inspector [] to perform a
CASp inspection of the entire shopping center where [defendants’ restaurant] is located[.]” (Dkt.
13-1, Motion to Dismiss at 3). Defendants “immediately began efforts to remediate all ADA noncompliance [] and in fact completed those repairs.” (Id.). “As a result, the parking area contained
clearly marked signage and parking, as well as proper access ramps for disabled persons.” (Id.).
Based on the foregoing IT IS ORDERED THAT:
1.
If plaintiff still wishes to pursue this action, he is granted until June 16, 2017, to file
a First Amended Complaint attempting to cure the defects identified above as well as the other
defects outlined in defendants’ motion to dismiss.
2.
The first amended complaint must be labeled “First Amended Complaint,” filed in
compliance with Local Rule 3-2 and contain the case number assigned to the case, i.e., Case No.
CV 16-4451 FMO (FFMx). In addition, plaintiff is informed that the court cannot refer to a prior
pleading in order to make his First Amended Complaint complete. Local Rule 15-2 requires that
an amended pleading be complete in and of itself without reference to any prior pleading. This
is because, as a general rule, an amended pleading supersedes the original pleading. See
Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“It is well-established
in our circuit that an amended complaint supersedes the original, the latter being treated thereafter
as non-existent. In other words, ‘the original pleading no longer performs any function[.]’”)
CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 1 of 2

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 16-4451 FMO (FFMx)

Date

Title

June 12, 2017

Andres Gomez v. Ciccero’s Pizza, Inc., et al.

(citations and internal quotation marks omitted).
3.
Plaintiff is cautioned that failure to timely file a First Amended Complaint may result
in this action being dismissed without prejudice for failure to prosecute and/or failure to comply
with a court order. See Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82
S.Ct. 1386, 1388 (1962).
4.
Defendants shall file their Answer to the First Amended Complaint or a motion
pursuant to Fed. R. Civ. P. 12 no later than June 29, 2017.
5.
In the event defendant wishes to file another motion to dismiss, then counsel for the
parties shall, on June 22, 2017, at 10:00 a.m.1 meet and confer in person at an agreed upon
location within the Central District of California” to discuss defendant’s motion to dismiss.
Defendant’s motion must include copies of all meet and confer letters as well as a declaration that
sets forth, in detail, the entire meet and confer process (i.e., when and where it took place, how
long it lasted and the position of each attorney with respect to each disputed issue that will be the
subject of the motion). Failure to include such a declaration will result in the motion being denied.
00
Initials of Preparer

:

00

vdr

1

Counsel may agree to meet and confer at another time and place without seeking court
approval for such an agreement.
CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 2 of 2