Moore v. Chase, Inc.
ORDER DENYING Defendant's Motion to File Amended Answer 17 . Order signed by Magistrate Judge Sheila K. Oberto on 3/23/2015. (Timken, A)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ORDER DENYING DEFENDANT’S
MOTION TO FILE AMENDED ANSWER
Case No. 1:14-cv-01178---SKO
CHASE, INC., d/b/a SLATER SHELL and
Defendant Chase , Inc., d/b/a Slater Shell (“Defendant”), has filed a Motion to File a First
20 Amended Answer to the Complaint, requesting leave to amend its answer to include a demand for
21 jury trial and assert an additional affirmative defense. (Doc. 17; see Doc. 17-1.) Plaintiff Ronald
22 Moore (“Plaintiff”) opposed the motion (Doc. 20), and Defendant filed a written reply to
23 Plaintiff’s opposition (Doc. 23.)
Because oral argument would not materially aid the resolution of the pending motions,
25 these matters are submitted on the briefs and record without a hearing. See E.D. Local Rule
26 230(g). Accordingly, the Court vacated the hearing scheduled for March 18, 2015. For the
27 reasons set forth below, Defendants’ motion to file a first amended answer to the Complaint is
Plaintiff filed this action on July 29, 2014, alleging that Defendant discriminated against
3 him based upon his disability as prohibited by Title III of the Americans with Disabilities Act,
4 42 U.S.C. § 12101, et seq. (“ADA”) and by state law. (See generally Doc. 1.) Specifically,
5 Plaintiff alleges he visited the Slater Shell gas station on Bullard Avenue in Fresno, California
6 owned and operated by Chase, Inc., and encountered barriers to his full and equal access. (Doc. 1,
7 2-3.) Plaintiff seeks an injunction requiring Defendant to remove all barriers to his full and equal
8 access, as well as minimum statutory damages available under the California Unruh Civil Rights
9 Act, Cal. Civ. Code § 51, et seq. (Doc. 1, 8.)
Defendant filed an “Answer with Jury Demand” on September 8, 2014. (Doc. 8.) In that
11 answer, Defendant asserted several defenses, including a reservation of rights to seek leave to
12 amend to assert and interpose additional affirmative defenses. (Doc. 8, 6.) Though labeled as an
13 “Answer with Jury Demand”1 when filed, Defendant’s Answer does not actually contain a jury
14 demand. (See Doc. 8.)
Defendant seeks leave to amend the answer pursuant to Rule 15 to “explicitly ask for a jury
17 trial” and “add a new affirmative defense stemming from [Plaintiff]’s serial and repetitive ADA
18 filings throughout the state.”
(Doc. 17, 3; see Doc. 17-1, 7.)
As support for the request,
19 Defendant explains the failure to include a demand for jury trial was an “oversight” and the fraud
20 claim that Plaintiff “is treating ADA as a means of making financial gains [and not] to redress a
21 wrong” is “an issue for the jury[.]” (Doc. 17, 3.)
Plaintiff argues that Defendant’s demand for jury trial is untimely under Federal Rule of
23 Civil Procedure Rule 38, and Defendant waived its right to a jury trial by failing to request it in the
24 initially filed Answer and by failing to demand a jury trial within 14 days thereafter. (Doc. 20, 2,
25 4.) Plaintiff also argues that even if all Defendant’s averments were taken as true, amendment to
26 include an affirmative defense of fraud is futile “because fraud is not a proper affirmative defense
The docket entry “Answer with Jury Demand” was selected when Defendant e-filed its answer on CM/ECF;
however, the actual document contains no jury demand.
1 to an ADA action” and, further, Defendant did not and cannot allege “circumstances constituting
2 [ ] fraud . . . with particularity.” (Doc. 20, 2-3.)
Defendant responds that because no Rule 26 deadline has expired and no discovery has
4 been exchanged, “there is no prejudice to Plaintiff by the way of these proposed amendments.”
5 (Doc. 17, 2.)
Plaintiff contends “the amendment is sought in bad faith simply to impugn
6 [Plaintiff’s] character and motives[.]” (Doc. 20, 3.)
Federal Rule of Civil Procedure Rule 15(a) provides that leave to amend “shall be freely
9 given when justice so requires.” See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051
10 (9th Cir. 2003) (the policy favoring amendment is to be applied with “extreme liberality”); Union
11 Pac. RR. Co. v. Nevada Power Co., 950 F.2d 1429, 1432 (9th Cir. 1991) (“[a]mendments seeking
12 to add claims are to be granted more freely than amendments adding parties”). The United States
13 Supreme Court has stated:
. . . [i]n the absence of any apparent or declared reason-such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc. – the
leave sought should, as the rules require, be “freely given.”
17 Foman v. Davis, 371 U.S. 178, 182 (1962). The Ninth Circuit has summarized these factors to
18 include: (1) undue delay; (2) bad faith; (3) prejudice to the opponent; (4) futility of amendment;
19 and (5) whether the party has previously amended his pleading. Nunes v. Ashcroft, 375 F.3d 805,
20 808 (9th Cir. 2004); see also Loehr v. Ventura Cty Cmty Coll. Dist., 743 F.2d 1310, 1319 (9th Cir.
Granting or denial of leave to amend rests in the sound discretion of the trial court.
23 Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 1331 (9th Cir. 1996); Swanson v. United States
24 Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). Despite the policy favoring amendment under
25 Rule 15, leave to amend may be denied if the proposed amendment is futile or would be subject to
26 dismissal. Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). “The party opposing
27 amendment bears the burden of showing why amendment should not be granted.” Lanier v.
28 Fresno Unified Sch. Dist., No. 1:09-CV-01779-AWI, 2013 WL 1896183 at *2 (E.D. Cal. May 6,
1 2013) (citing Board of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc.,
2 No. C 05-04158-MHP, 2008 WL 624771, at *6 (N.D. Cal. Mar. 4, 2008).
Defendant seeks to amend its answer to raise an additional affirmative defense entitled
“Fraud by Plaintiff.” (See Doc. 17-1, 7.) However, Defendant cites no authority, and the Court is
unable to find any authority after its independent research, recognizing “fraud” as an affirmative
defense against an ADA claim.
An affirmative defense is one which absolves a defendant of liability even where the
plaintiff states a prima facie case for recovery. Vogel v. Huntington Oaks Delaware Partners,
LLC, 291 F.R.D. 438, 442 (C.D. Cal. 2013). An affirmative defense is distinguishable from an
attack on a plaintiff’s case-in-chief: “A defense which demonstrates that plaintiff has not met its
burden of proof is not an affirmative defense.” Zivkovic v. Southern California Edison Co., 302
F.3d 1080, 1088 (9th Cir.2002).
Defendant’s proposed amendment purports to raise a new affirmative defense based upon
the allegation that Plaintiff deliberately sought out Defendant’s place of business – not to redress
an actual injury, but to earn money via ADA lawsuits.2 (Doc. 17, 2.) However, Defendant cites
no legal authority which recognizes a legal defense which arises from these facts.
The ADA prohibits discrimination on the basis of disability in places of public
Amendment is Futile Because “Fraud” is Not an Affirmative Defense to an ADA
No individual shall be discriminated against on the basis of disability in the full
and equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.
The Court notes that Defendant already pleaded a sixth affirmative defense of “Unclean Hands” in its Answer to
the Complaint, which has been generally treated as an appropriate affirmative defense to an ADA claim. See, e.g.,
Figueroa v. Baja Fresh Westlake Village, Inc., 2012 WL 2373254 (C.D. Cal. May 24, 2012) (citing Doe v. Deer
Mountain Day Camp, Inc., 682 F. Supp. 2d 324, 338-39 n.31 (S.D.N.Y. 2010); Figueroa v. Marshalls of CA, LLC,
No. CV-11-06813-RGK(SPx), 2012 WL 1424400 at *2 (C.D. Cal. Apr. 23, 2012); and Kohler v. Islands Restaurants,
LP, 280 F.R.D. 560, 572 (S.D. Cal. 2012) (“Without more explicit guidance from the Ninth Circuit or Supreme Court,
this Court will not conclude that unclean hands is inapplicable to all ADA claims. Furthermore, even if this Court did
come to that conclusion, it would not bar the defense to [Plaintiff]’s California claims.”)). Though an affirmative
defense of “fraud” is not appropriate in an ADA case, Defendant is not prohibited from expanding or elaborating on
its “unclean hands” affirmative defense in any responsive pleading to Plaintiff’s potential amended complaint.
1 42 U.S.C. § 12182(a). The ADA specifically prohibits the “failure to remove architectural barriers
2 . . . in existing facilities . . . where such removal is readily achievable.”
3 § 12812(b)(2)(A)(iv). “To prevail on a Title III discrimination claim, the plaintiff must show that
4 (1) she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns,
5 leases, or operates a place of public accommodation; and (3) the plaintiff was denied public
6 accommodations by the defendant because of her disability.” Molski v. M.J. Cable, Inc., 481 F.3d
7 724, 730 (9th Cir. 2007) (citing 42 U.S.C. §§ 12182(a)-(b)).
Nothing in the statutory language of the ADA suggests that a plaintiff’s serial ADA
9 litigation history gives rise to a defense against ADA claims. Notably, the Ninth Circuit has
10 rejected the arguments that ADA claims can only be brought by bona fide “clients or customers”
11 or that a serial ADA litigant could be classified as a “business” that somehow falls outside the
12 protection of the ADA. Molski, 481 F.3d at 732-734. Defendant’s reply fails to cite a single case
13 that recognizes an affirmative defense based upon fraud or based upon a Plaintiff’s intent to find
14 businesses which violate the ADA for Plaintiff’s own profit. (See Doc. 23.)
Defendant also fails to allege facts meeting the elements of a fraud claim, see Robinson
16 Helicopter Co., Inc. v. Dana Corp., 34 Cal. 4th 979, 990 (Cal. 2004) (requiring a
17 misrepresentation, scienter, intent to defraud or induce reliance, justifiable reliance, and resulting
18 damage), and alleges no facts to establish any misrepresentation by Plaintiff. A plain reading of
19 the Complaint reveals that Plaintiff nowhere claims that he is not a serial ADA litigator or that he
20 is not motivated by pecuniary gain in seeking out ADA violators.
Although fraud is not available to Defendant as an affirmative defense, Defendant may
22 attack Plaintiff’s case-in-chief by arguing that Plaintiff cannot meet his burden-of-proof on his
23 claims and that Plaintiff made false factual allegations in his complaint. See Zivkovic, 302 F.3d at
24 1088. Accordingly, it is unnecessary to amend the answer to raise an “affirmative defense” based
25 upon such a theory.
Based upon the foregoing, the Court finds that Defendant’s proposed amendment to its
27 answer to state an additional affirmative defense would be futile. The futility of Defendant’s
28 proposed amendment to state a “fraud” affirmative defense overcomes any presumption under
1 Rule 15 in favor of granting leave to amend.
Defendant Waived Its Right to Jury Trial, and Amendment to Include a Jury
Demand Will Not Be Permitted
While undue delay “by itself is insufficient to justify denying a motion to amend[,]”
5 Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999); Howey v. United States, 481 F.2d 1187,
6 1191 (9th Cir. 1973), it remains relevant. Loehr, 743 F.2d at 1319. A moving party may be
7 precluded from asserting an amendment based on undue delay where the matters asserted in the
8 amendment were known to the moving party from the beginning of the suit. Komie v. Buehler
9 Corp., 449 F.2d 644, 648 (9th Cir. 1971) (finding that where the moving party filed a motion to
10 amend the pleadings 31 months after the answer was filed, the trial court did not abuse its
11 discretion in denying leave to amend).
Defendant unduly delayed its pursuit of this amendment. Defendant did not demand a jury
13 trial within the time specified in Rule 38(b)(1), fourteen days from the filing of the last pleading
14 concerned with the issues for which trial by jury is sought. The last pleading was Defendant’s
15 answer, filed September 8, 2014. (Doc. 8.) Defendant filed the instant motion on January 22,
16 2015, some four months later. (Doc. 17.) Defendant bases its motion on defense counsel’s
17 Declaration, stating that “[t]he failure to ask for a jury trial was simply an oversight.” (Doc. 17,
An “oversight” is insufficient grounds to require this Court to permit an untimely demand.
20 “Although the right to a jury trial is a constitutional one, the Federal Rules of Civil Procedure,
21 which set out time limits for invoking this right, are authoritative. A court’s exercise of discretion
22 in denying a motion for a jury trial, based on these rules, does not impinge upon a party’s
23 constitutional rights.” Chandler Supply Co. v. GAF Corp., 650 F.2d 983, 987 (9th Cir. 1980)
24 (citing Pacific Queen Fisheries v. Symes, 207 F.2d 700, 718-19 (9th Cir. 1962), cert. denied, 372
25 U.S. 907 (1963)).
It is well-settled that an “untimely requests for a jury trial must be denied unless some
27 cause beyond mere inadvertence is shown.” Chandler Supply, 650 F.2d at 987 (citing Mardesich
28 v. Marciel, 538 F.2d 848, 849 (9th Cir. 1976) (per curiam)); see also Lewis v. Time, Inc., 710 F.2d
1 549, 556-57 (9th Cir. 1983) (a district court’s discretion to order a jury trial on a motion by a party
2 who has not filed a timely demand is narrow, and a court is not permitted to grant relief when the
3 failure to make a timely demand results from an oversight or inadvertence); Rutledge v. Electric
4 Hose & Rubber Co., 511 F.2d 668, 675 (9th Cir. 1975) (the district court’s discretion “should
5 rarely be exercised to grant a trial by jury in default of a proper request for it”).
The Court finds Defendant unduly delayed in seeking this amendment.
For the reasons set forth above, the Court finds that Defendant should not be granted leave
9 to amend its answer because its proposed amendment to include an additional affirmative defense
10 would be futile and because Defendant has waived its right to a jury trial.
Based upon the foregoing, it is HEREBY ORDERED that:
1. The hearing on Defendant’s motion set for March 17, 2015 is VACATED; and
2. Defendant’s motion for leave to amend its answer to the complaint is DENIED.
IT IS SO ORDERED.
March 23, 2015
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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