Enns et al v. Flores et al

Filing 146

MEMORANDUM Decision Regarding 124 Motion to Amend signed by Judge Oliver W. Wanger on 4/20/2011. (Proposed Order Consistent with Memorandum Decision Deadline: 4/27/2011) (Figueroa, O)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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1:07-cv-01043-OWW-DLB

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ENNS PONTIAC, BUICK, & GMC
TRUCK, et al.,

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Plaintiffs,

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MEMORANDUM DECISION REGARDING
MOTION TO AMEND (Doc. 124)

v.
ORELIA FLORES, et al.,

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Defendants.

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I. INTRODUCTION.

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On July 19, 2007, Plaintiffs filed their original complaint in

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this action. (Doc. 2).

Plaintiffs filed a first amended complaint

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(“FAC”) on November 7, 2007.

(Doc. 13).

Plaintiffs filed a motion to amend the FAC on February 17,

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20

2011.

(Docs. 123, 124).

Defendants Mabel Lee, Reedley Dry

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Cleaning Works, Reedley Steam Laundry, and the Estate of Herbert

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Lee filed opposition to Plaintiffs’ motion on April 4, 2011. (Doc.

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128).

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April 4, 2011; Defendant John Pierce also filed opposition to the

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motion to amend on April 4, 2011.

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filed replies on April 11, 2011.

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///

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///

Defendant the Estate of Sieto Yamaguchi filed opposition on

(Docs. 132, 135).

Plaintiffs

(Docs. 138, 139, 140).

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II. FACTUAL BACKGROUND.

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2

FAC’s Allegations

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This case concerns the alleged release of various hazardous

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substances, namely solvents used in the dry cleaning industry, into

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a groundwater plume underlying part of Reedley, California.

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FAC includes two federal claims for (1) recovery of “response”

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costs under the Comprehensive Environmental Response, Compensation,

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and Liability Act (“CERCLA”) §§ 107(a)(1-4)(B), and (2) declaratory

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relief under federal law, as well as five additional state law

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claims for (3) negligence per se, (4) negligence, (5) public and

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private nuisance, (6) trespass, and (7) equitable indemnity, and

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(8) declaratory relief under state law.

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The

FAC

sets

forth

the

following

general

The

background

14

information. Plaintiffs own real property located at 1319 G.

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Street, Reedley, California (“Plaintiffs’ Site”). (FAC ¶2.) Prior

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to Plaintiffs taking ownership of 1319 G. Street, Mabel and Herbert

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Lee (the “Lee Defendants”) owned and/or operated a dry cleaning

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business at that location from approximately the 1940s through the

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1970s. (FAC ¶4.) Herbert Lee is now deceased.

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Orelia Florez and Sieto Yamaguchi (the “Flores/Yamaguchi”

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defendants) owned and/or operated real property at 1340 G. Street,

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Reedley, California, which is across the street from Plaintiff’s

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Site. (FAC ¶¶ 4, 7.).

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John Pearce (“Pearce”) and Patty and Louie Martinez (“Martinez”)

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“each owned and/or operated real property nearby and/or adjacent to

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the

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properties either currently or previously owned by these Defendants

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“caused

Plaintiffs’

Sieto Yamaguchi is now deceased.

Site.”

Plaintiffs

(FAC

and

¶4.)

The

Plaintiffs’
2

FAC

alleges

Site

Finally,

that

the

environmental

1
2

contamination.” (Id.)
Plaintiffs allege that Defendants and Defendants’ properties

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“generated disposed of or released ... hazard[ous] substances or

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wastes that caused contamination and pollution of structures,

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soils, subsoils, surface water and groundwater at and in the

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vicinity of the Plaintiffs’ Site (both on-site and off-site)

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through the handling, generation, usage, storage, disposal of

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and/or release of hazardous substances at, onto and from the

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Plaintiffs’ Site and Defendants’ Sites.” (FAC ¶5.). The FAC’s

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allegations regarding the nature of the contamination at issue are

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very generic, alleging that Defendants, beginning in the 1940s,

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while operating either on Plaintiffs’ Site or other sites, released

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hazardous substances including chlorinated hydrocarbon compounds

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(“CHCs”). (FAC ¶¶ 37-38.) These CHC releases allegedly caused and

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contributed to the contamination of soil and groundwater underlying

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Plaintiffs’

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properties. (FAC ¶37.)

Site,

Defendants’

properties,

and

surrounding

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In the First Claim for Relief, for recovery of response costs

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under CERCLA §§ 107(a)(1-4)(B), Plaintiffs allege that they “have

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incurred, and will continue to incur, substantial Response Costs

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... to fully characterize the Plaintiffs’ Site, including, but not

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limited to, soil sampling; installation of groundwater monitoring

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wells; sampling such wells and having all samples analyzed....”

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(FAC ¶42.) In addition, Plaintiffs anticipate that they will incur

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additional

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contamination. (Id.) The FAC specifically alleges that Defendants

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“caused and continue to cause Plaintiffs to incur Response Costs on

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their property and for the underlying groundwater.” (FAC ¶49.) The

costs

to

address

existing

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and

future

groundwater

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FAC contains no further details about the nature of Defendants’

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releases or contribution to any contamination.
III. LEGAL STANDARD.

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Rule 15(a), Federal Rules of Civil Procedure, provides that

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"leave [to amend] shall be freely given when justice so requires."

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"The purpose of pleading is 'to facilitate a proper decision on the

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merits' … and not erect formal and burdensome impediments to the

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litigation process.

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will result, a trial judge should ordinarily permit a party to

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amend its complaint." Howey v. United States, 481 F.2d 1187, 1190

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(1973).

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amendment of pleadings … must be tempered with considerations of

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'undue delay, bad faith or dilatory motive on the part of the

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movant,

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previously allowed, undue prejudice to the opposing party by virtue

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of allowance of the amendment, futility of amendment, etc.' Foman

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v. Davis, 371 U.S. 178, 182 (1962)." Schlacter-Jones v. General

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Telephone of California, 936 F.2d 435, 443 (9th Cir. 1991). "These

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factors, however, are not of equal weight in that delay, by itself,

20

is insufficient to justify denial of leave to amend." DCD Programs,

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833 F.2d at 186; see also Jones, 127 F.3d at 847 n.8.

However,

repeated

Unless undue prejudice to the opposing party

"[t]his

failure

strong

to

policy

cure

toward

deficiencies

permitting

by

the

amendments

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"[I]t is the consideration of prejudice to the opposing party

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that carries the greatest weight … Absent prejudice, or a strong

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showing of any of the remaining Foman factors, there exists a

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presumption under Rule 15(a) in favor of granting leave to amend."

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th

27

Cir.2003). "The party opposing leave to amend bears the burden of

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showing prejudice." Serpa v. SBC Telecommunications., Inc., 318 F.
4

1

Supp. 2d 865, 870 (N.D.Cal.2004).

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Plaintiffs’ Proposed Amendments

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Plaintiffs seek to amend the complaint in order to (1) join

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additional parties, including the administrators for the estates of

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deceased

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Defendants’ names; and (3) add a claim pursuant to the Resource

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Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (“RCRA”).

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Plaintiffs allege that the necessity for the proposed amendments

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was revealed during discovery.

(2)

correct

the

spelling

of

certain

IV. DISCUSSION.

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Defendants;

A.

Amendment to Add RCRA Claims

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RCRA is a comprehensive environmental statute that governs the

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treatment, storage, and disposal of solid and hazardous waste.

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Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996) (citing Chicago

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v. Envtl. Def. Fund, 511 U.S. 328, 331-32 (1994)).

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to minimize the present and future threat to human health and the

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environment, not effectuate the clean-up of toxic waste sites or

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allocate those costs. 42 U.S.C. § 6902(b); Meghrig, 516 U.S. at

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483.

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injunction, i.e., one that orders a responsible party to 'take

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action' by attending to the cleanup and proper disposal of toxic

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waste, or a prohibitory injunction, i.e., one that 'restrains' a

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responsible party from further violating RCRA." Id. at 484.

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Its purpose is

RCRA provides for citizen suits to obtain a "mandatory

Citizen suits under RCRA require proof of notice.

E.g.,

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Covington v. Jefferson County, 358 F.3d 626, 636 (9th Cir. 2004).

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For suits alleging present violations of RCRA, the plaintiff must

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provide notice to the relevant parties sixty-days before filing

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suit. Id. (citing 42 U.S.C. § 6972(b)(1)(A)). For actions alleging
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"contribution" to present or past violations of RCRA, a ninety-day

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notice is required. Id. (citing § 6972(b)(2)(A)). Both notice

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provisions are jurisdictional: absent compliance with a required

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notice

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jurisdiction to hear the RCRA claims. Id. (citing inter alia Ascon

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Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)

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(holding

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jurisdictional)).

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take

provision,

a

that

a

district

the

court

ninety-day

lacks

notice

subject

matter

requirement

is

The Supreme Court has held that courts may not

“flexible

or

pragmatic”

approach

to

RCRA’s

notice

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requirements; if a citizen commences an action under RCRA without

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complying

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6972(b)(1), the action must be dismissed.

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Tillamook County, 493 U.S. 20, 31 (1989).

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with

the

notice

requirements

embodied

in

section

E.g., Hallstrom v.

The EPA has promulgated a regulation detailing the contents of
the RCRA notice requirement:
Notice regarding an alleged violation of a standard,
regulation, condition, requirement, or order (including
any provision of an agreement under section 120 of the
Act, relating to Federal facilities) which has become
effective under this Act shall include sufficient
information to allow the recipient to identify the
specific standard, regulation, condition, requirement, or
order (including any provision of an agreement under
section 120 of the Act, relating to Federal facilities)
which has allegedly been violated; the activity or
failure to act alleged to constitute a violation; the
name and address of the site and facility alleged to be
in violation, if known; the person or persons responsible
for the alleged violation; the date or dates of the
violation; and the full name, address, and telephone
number of the person giving notice.

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40 C.F.R § 374.3(a).
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Defendants contend that Plaintiffs have not complied with
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RCRA’s notice requirements because the notices Plaintiffs provided
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do not contain sufficient information to afford Defendants an
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1

opportunity to identify the basis for the notices.

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Defendants assail Plaintiffs’ notices on the grounds that they do

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not (1) specify the nature of the activity on the property that

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allegedly contributed to contamination; (2) identify the hazardous

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waste released; or (3) provide any dates or a range of dates for

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the alleged releases.

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were not served in compliance with the applicable regulation.

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9

Specifically,

Defendants also contend that the notices

RCRA’s notice provision is designed to strike a balance
between

encouraging

avoiding

enforcement

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regulations

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excessive numbers of citizen suits.

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and

citizen

burdening

the

of

federal

environmental
courts

with

Hallstrom, 493 U.S. at 29.

Requiring citizens to comply with notice and delay
requirements serves this congressional goal in two ways.
First, notice allows Government agencies to take
responsibility for enforcing environmental regulations,
thus obviating the need for citizen suits. First, notice
allows Government agencies to take responsibility for
enforcing environmental regulations, thus obviating the
need for citizen suits. In many cases, an agency may be
able to compel compliance through administrative action,
thus eliminating the need for any access to the courts.
See 116 Cong. Rec. 33104 (1970) (comments of Sen. Hart).
Second, notice gives the alleged violator "an opportunity
to bring itself into complete compliance with the Act and
thus likewise render unnecessary a citizen suit."

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Id.

The legislative objectives identified by the Supreme Court in

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Hallstom cannot be met if citizen plaintiffs are excused from

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providing adequate information in the pre-suit notice to enable the

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recipients

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violations.

Friends of the Earth, Inc. v. Gaston Copper Recycling

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Corp., 629

F.3d

of

such

notices

387,

399

to

identify

(4th

26
27
28
7

Cir.

the

2011)

specific

alleged

(discussing notice

1

requirements under similar provision of the Clean Water Act).1

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The key language in RCRA’s notice regulation is the phrase

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“sufficient information to allow the recipient to identify the

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specific standard, regulation, condition, requirement, or order...

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which has allegedly been violated.”

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Inc., v. Tosco Corp., 309 F.3d 1153, 1158 (9th Cir. 2002) (noting

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that similar phrase contained in parallel regulation promulgated

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under the CWA is the key component of that regulation).

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sufficient if it is specific enough “to give the accused company

See San Francisco Baykeeper,

Notice is

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the opportunity to correct the problem.”

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As a general matter, a notice should include information sufficient

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to permit the recipient to identify dates or a range of dates

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applicable to the alleged violations. San Francisco Baykeeper, 309

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F.3d at 1158-59; California Sportfishing Protection Alliance v.

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City of W. Sacramento, 905 F. Supp. 792, 799 (E.D. Cal. 1995)

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(“Ideally plaintiff will identify the precise date. But at the

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least plaintiff should give a range as to date that is reasonably

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limited.”).

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Id. (citation omitted).

The notice should also identify the types of pollutants

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allegedly discharged.

See WaterKeepers N. Cal. v. AG Indus. Mfg.,

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375 F.3d 913, 917 (9th Cir. 2004).

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identify a suspected source of the alleged problem, such as debris,

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manufacturing materials, activities, or practices possibly leading

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to the discharge of contamination.

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recipient of the notice must understand from the notice what the

At a minimum, the notice should

See id. at 917-18 n.2.

“[T]he

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1

As numerous courts have noted, because of the close similarity between the
respective notice regulations applicable to RCRA and CWA, case law construing one
regulation is generally applicable to the other.

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1

citizen is alleging.”

2

The

boilerplate

City of W. Sacramento, 905 F. Supp. at 799.
and

conclusory

RCRA

notices

provided

by

3

Plaintiffs are insufficient.

4

information to enable the recipient to ascertain a range of dates

5

for the alleged violations.

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mechanism for contamination; to the contrary, the notices say

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nothing about what operations on the site are alleged to have

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caused contamination.

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the types of contaminants at issue.

In short, the notices are

10

devoid

sufficient

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recipient

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conditions, requirements, or orders which have allegedly been

13

violated.

of

any
to

The notices do not provide any

The notices do not suggest the

The notices do not even generally identify

specific
identify

information
the

specific

to

standards,

allow

the

regulations,

40 C.F.R § 374.3(a).

14

Because Plaintiffs notices fail to satisfy statutory notice

15

requirements, permitting amendment to add RCRA claims is futile

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absent a legally sufficient notice; this reason alone justifies

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denial of Plaintiffs’ motion to Amend the complaint to add RCRA

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claims.2

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B. Amendment to Join Additional Parties

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Plaintiffs’ motion to amend to add RCRA claims is DENIED.

Plaintiffs

seek

to

join

five

additional

individuals

as

21

Defendants: Ethel Warnock, Bruce Warnock, Jesse Williams, Reynaldo

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Betancourt, and Floyd Morse (“New Parties”).

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to name the administrators of the estates of two Defendants already

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named in this action: Sachiko Yamaguchi for the Estate of Sieto

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Yamaguchi, and Patricia Clothier and Carolyn Whitesides for the

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Estates of Mabel and Herbert Lee (“Administrator Defendants”).

Plaintiffs also seek

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2

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Because Plaintiffs’ RCRA notices are deficient, the court does not reach the
parties additional contentions.

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1
2

Plaintiffs also seek to amend the complaint to correct the spelling
of the names of two Defendants, John Pearce and Patsy Martinez.
1. Addition of New Parties

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a. Undue Delay

4

On May 14, 2010, the court granted the parties’ request for a

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twelve-month extension of all deadlines set forth in the January
12, 2009 Scheduling Order.

Scheduling Order) (“Stipulation”).

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25

It is beyond question that at

the time the court granted the parties request to extend all
deadlines in May 2010, Plaintiffs knew they needed to amend the
complaint to add the New Parties as defendants; each of them was
identified by name in the Stipulation.3

Plaintiffs motion does not

explain why the New Parties are being added at this late stage in
the litigation.

See, e.g., AmerisourceBergen Corp. v. Dialysist

West, Inc., 465 F.3d 946, 953.n9, 954 (9th Cir. 2006) (finding
district court did not abuse discretion in denying motion to amend
that did not “allege any newly discovered facts” or explain the
plaintiff’s delay in filing the motion); Lockheed Martin Corp. v.
Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999) (noting
that unexplained delay in filing motion weighs against permitting
amendment).
Joinder will require that the New Parties be given sufficient

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(Doc. 122, Stipulated Amendment to

time to retain counsel, propound discovery, and file dispositive
motions, leading to yet another modification of the Scheduling
Order.

(See Doc. 122).

This action has been pending on the

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3

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In fact, Plaintiffs’ motion suggests that they have known of the need to add
the New Parties since December of 2008: “all Parties have been aware of Enns’
intent to add the additional parties since the first Scheduling Conference held
on December 18, 2008.” (Motion to Amend at 5) (emphasis added).

10

1

court’s docket for almost four years.

2

Further delay must be

explained.
b. Prejudice

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4

Prejudice to the opposing party is the most critical factor in

5

determining whether to grant leave to amend. Howey v. U.S., 481

6

F.2d 1187, 1190 (9th Cir. 1973).

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period and therefore delay the proceedings supports a district

8

court's finding of prejudice from a delayed motion to amend the

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complaint. E.g., Lockheed Martin Corp., 194 F.3d at 986 (citing

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Solomon v. North Am. Life & Cas. Ins. Co., 151 F.3d 1132, 1139 (9th

11

Cir. 1998) (affirming the district court's denial of motion to

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amend pleadings filed on the eve of the discovery deadline));

13

Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)

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(affirming denial of motion to amend filed shortly before discovery

15

cutoff because "amended pleading would have prejudiced defendant,

16

which would then have had a very limited amount of time to

17

respond"); see also Goolsby v. Carrasco, 2010 U.S. Dist. LEXIS

18

111510

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deadlines, the Court concludes that these new defendants would be

20

significantly prejudiced by the amendment”).

21

*

13

(E.D.

Cal.

A need to extend the discovery

2010)

(“Given

the

looming

discovery

The hearing on Plaintiffs’ motion is set for April 18, 2011.

22

If

Plaintiffs’

motion

23

approximately

24

currently scheduled deadlines. Even if the discovery deadlines are

25

extended sixth months, New Parties will be required to accelerate

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their defense.

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eight months of discovery remained, requiring the parties to

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scramble and attempt to ascertain whether the Procrit purchased by

seven

is

weeks

granted,
to

New

propound

Parties

discovery

will

have

within

the

AmerisourceBergen, 465 F.3d at 953 (“Even though

11

1

AmerisourceBergen

2

potentially high, additional litigation costs”).

3
4

was

tainted,

would

have

unfairly

imposed

Amendment to add New Parties may cause undue delay and serious
prejudice to the nonmovants.

5

2. Addition of Administrator Defendants

6

Plaintiffs seek to add the administrators of the estates of

7

deceased

Defendants

currently

named

in

this

action:

Sachiko

8

Yamaguchi for the Estate of Sieto Yamaguchi, and Patricia Clothier

9

and Carolyn Whitesides for the Estates of Mabel and Herbert Lee.
a. Lee Defendants

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11

The Lee Defendants contend that amendment to add Patricia

12

Clothier and Carolyn Whitesides as administrators would be futile

13

because

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injunctive relief; (2) Mabel Lee’s estate contains no assets; and

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(3) Plaintiffs lack any legal means of compelling either woman to

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serve in the estate administration they seek. Lee Defendants also

17

contend that

18

prejudiced because they are not California residents.

19

(1)

they

Ms.

are

incapable

Clothier and

of

Ms.

satisfying

any

Whitesides will

order

be

for

unduly

Lee Defendants’ initial disclosures represent that Mabel Lee

20

is

the

executrix

of Herbert

Lee’s estate, and

that Patricia

21

Clothier is the executrix of Mabel Lee’s estate.

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3).

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“Plaintiffs shall name the individual personal representatives for

24

the Estates of all deceased parties who are Defendants in this

25

action.”

26

Whitesides as the personal representatives of deceased Defendants

27

is appropriate, as the proposed amended complaint alleges that Ms.

28

Whitesides and Ms. Clothier are the administrators of the Estates

(Doc. 141, Ex.

The court’s January 14, 2009 scheduling order provides that

(Doc. 97).

Amendment to add Ms. Clothier and Ms.

12

1

of Mabel Lee and Herbert Lee. Defendants have not established that

2

Ms.

3

representatives of the Lee estates, or that amendment would be

4

futile.

Whitesides

and

Ms.

Clothier

are

not

the

personal

5

Lee Defendants assertion of prejudice is insufficient, as

6

their argument that they would be prejudiced due to the fact that

7

they do not live in California misapprehends the prejudice inquiry

8

applicable under Rule 15.

9

representatives for deceased parties.

The law requires addition of personal
The prejudice that the Lee

10

Defendants identify is no more than the inconvenience every party

11

suffers when they are sued in a state other than the state of their

12

residence.

13

amendment under Rule 15's liberal policy favoring amendments.

Such inconvenience does not suffice to foreclose

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b. Yamaguchi Defendants

15

Yamaguchi

Defendants’

opposition

is

directed

almost

16

exclusively to the alleged impropriety of naming “the Estate of

17

Sieto Yamaguchi” as a Defendant in this action, however, the Estate

18

of Sieto Yamaguchi is already a named Defendant.

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proposed amended complaint seeks to add Sachiko Yamaguchi as Sieto

20

Yamaguchi’s

21

requires.

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28

The

personal

only

representative.

argument

advanced

with

This

is

respect

Plaintiffs’

what

to

the

Plaintiffs’

proposed amendment to add Sachiko Yamaguchi is the following:
in order to sue a decedent’s estate for damages exceeding
available liability insurance, the claimant must have
filed a timely claim in the probate proceedings and join
the personal representative in the action.
(See Cal.
Probate Code §554, 9390(b)). The statute of limitations
on such a claim is one year from the decedent’s death.
(See Cal. Civ. Code § 366.2)...However, by the time the
court hears the [Motion to Amend], it will have been over
four years since Dr. Yamaguchi passed away. Failure to
13

law

1
2
3

name Dr. Yamaguchi’s personal representative within one
year of his death is fatat to all claims alleged by
Plaintiffs against Dr. Yamaguchi’s personal administrator
for damages exceeding available liability insurance
coverage in this action.
Consequently, Plaintiffs’
Motion is futile.

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(Doc. 132, Opposition at 12).

Defendants’ argument is scattered.

Under California law, there are two methods for recovering
damages from a deceased tortfeasor:
If the decedent's property has been distributed through
a probate administration in the probate court, the
plaintiff must first filed a claim in probate court. See
CAL. PROB. CODE § 9351 ("An action may not be commenced
against a decedent's personal representative on a cause
of action against the decedent unless a claim is first
filed as provided in this part and the claim is rejected
in whole or in part"); see also Boyle v. County of Kern,
CV 03-5162 OWW GSA, 2008 U.S. Dist. LEXIS 5592, 2008 WL
220413, *7 (E.D. Cal. Jan. 25, 2008) ("Before a creditor
may commence a lawsuit against an estate, the creditor
must file a claim. . . . Filing a lawsuit against an
estate is not the equivalent of filing a probate claim,"
citing Van Ort v. Estate of Stanewich, 92 F.3d 831, 841
(9th Cir. 1996)). Where the decedent's property is
distributed without probate, however, the recipients of
the decedent's property are personally liable for his
debts. See CAL. PROB. CODE § 13109 ("A person to whom
payment, delivery, or transfer of the decedent's property
is made under this chapter is personally liable, to the
extent provided in Section 13112, for the unsecured debts
of the decedent. Any such debt may be enforced against
the person in the same manner as it could have been
enforced against the decedent if the decedent had not
died. In any action based upon the debt, the person may
assert any defenses, cross-complaints, or setoffs that
would have been available to the decedent if the decedent
had not died")

22
23

Pelayo v. City of Downey, 570 F. Supp. 2d 1183, 1192 (N.D. Cal.

24

2008).

25

record establishes that Sieto Yamaguchi’s property was distributed

26

through probate administration in the probate court.

27

sections of the California Probate Code cited by Defendants,

28

sections 550-555, apply "in any case where there is a claim for

Nothing in the FAC, the proposed amended complaint, or the

14

Further, the

1

damages for which the decedent was insured."

2

Substances Control v. Interstate Non-Ferrous Corp., 298 F. Supp. 2d

3

930, 949

4

Yamaguchi had no such insurance.

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The filing of a claim in probate is jurisdictional.

(E.D.

Cal.

2003).

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Plaintiffs

represent

that

Sieto

(Doc. 132, Opposition at 12).

C. Spelling Corrections

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Defendants

Cal. Dep't of Toxic

seek

to

change

the

spelling

of

the

name

of

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Defendant “John Pierce” to “John Pearce” and of Defendant “Patty

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Martinez” to “Patsy Martinez.” Defendants do not oppose this minor

10

correction.
ORDER

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For reasons stated, IT IS ORDERED:

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1) Plaintiffs’ Motion to Amend is DENIED with respect to the

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addition of RCRA claims;

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2) Plaintiffs’ Motion to Amend id DENIED with respect to

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joining Ethel Warnock, Bruce Warnock, Jesse Williams, Reynaldo

17

Betancourt, and Floyd Morse as Defendants;

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3) Plaintiffs’ motion to amend is GRANTED with respect to

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adding the personal representatives of deceased Defendants and

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with respect to correction of spelling errors;

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4) Plaintiffs shall file an amended complaint within five days

22

of receiving electronic service of this decision;

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5) Defendants shall file responsive pleading within twenty

24

days of receiving electronic service of an amended complaint;

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and

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6) Plaintiffs shall file a form of order consistent with this

27

decision within five days of receiving electronic service of

28

this decision.
15

1
2
3

IT IS SO ORDERED.

4

Dated:
hkh80h

April 20, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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