O'Campo v. Ghoman et al

Filing 25

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 11/9/2011 RECOMMENDING that plaintiff's # 19 motion to amend his complaint be granted; and plaintiff be granted 21 days to file and serve his amended complaint; Referred to Judge Kimberly J. Mueller; Objections due within 14 days after being served with these F & R's. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DIMAS O’CAMPO,

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Plaintiff,

No. CIV S-08-1624 KJM DAD PS

vs.
RAGHBIR SINGH GHOMAN
dba QUIK SHOP 2; GHOMAN’S
PROPERTIES, LLC.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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This matter came before the court for hearing of plaintiff Dimas O’Campo’s

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motion for leave to file an amended complaint. (Doc. No. 19.) Attorney Scott L. Hubbard

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appeared telephonically on behalf of plaintiff Dimas O’Campo. Defendant Raghbir Singh

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Ghoman did not appear. Oral argument was heard, and plaintiff’s motion was taken under

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submission.

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BACKGROUND
On July 15, 2008, plaintiff filed a complaint alleging that defendant Raghbir

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Singh Ghoman dba Quik Shop 2 and defendant Ghoman’s Properties, LLC, discriminated against

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plaintiff in violation of the Americans with Disabilities Act (“ADA”), the Disabled Persons Act

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(“DPA”), the Unruh Civil Rights Act (“UCRA”), and certain provisions of the California Health
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and Safety Code. (Compl. (Doc. No. 1.)) On October 10, 2008, defendants, represented by

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counsel, filed an answer to plaintiff’s complaint. (Answer (Doc. No. 5.)) On June 18, 2009,

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counsel for defendants filed a motion to withdraw as attorney of record citing, among other

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factors, defendants’ refusal to respond to counsel’s phone calls, mail and certified mail. (Doc.

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No. 8.) On July 29, 2009, the previously assigned District Judge granted counsel’s motion to

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withdraw as attorney of record, ordered defendant Raghbir Singh Ghoman substituted in propria

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persona, advised defendant Ghoman’s Properties, LLC that as a corporation it could not appear in

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propria persona and therefore must obtain counsel to avoid default, and referred the matter to the

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undersigned pursuant to Local Rule 72-302(c)(21). (Doc. No. 9.)

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On November 12, 2009, the previously assigned District Judge adopted the

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undersigned’s findings and recommendations and ordered the answer filed October 10, 2008,

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stricken to the extent it was filed on behalf of defendant Ghoman’s Properties, LLC, deeming

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that answer to be filed solely the answer of defendant Raghbir Singh Ghoman dba Quick Shop 2.

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(Doc. No. 12.) On February 5, 2010, a status (pretrial scheduling) conference was held before

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the undersigned. Attorney Lynn Hubbard appeared telephonically on behalf of plaintiff Dimas

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O’Campo. Defendant Raghbir Signh Ghoman appeared pro se on his own behalf. There was no

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appearance on behalf of defendant Ghoman’s Properties, LLC. After the hearing the court issued

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a pretrial scheduling order on February 8, 2010. (Doc. No. 16.) On April 5, 2010, plaintiff filed

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a request for entry of default as to defendant Ghoman’s Properties, LLC. (Doc. No. 17.) The

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Clerk of the Court entered default as to defendant Ghoman’s Properties, LLC on April 6, 2010.

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(Doc. No. 18.)

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However, on January 7, 2011, the Ninth Circuit, in an en banc decision, altered

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the pleading standard for claims brought under the Americans with Disabilities Act. See

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Chapman v. Pier One Imports, Inc., 631 F.3d 939 (9th Cir. 2011). On January 17, 2011, plaintiff

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filed a motion for leave to file an amended complaint in light of the Ninth Circuit’s decision in

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Chapman. Plaintiff’s motion was heard before the undersigned on February 25, 2011. Neither

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defendant filed an opposition to plaintiff’s motion or appeared at the February 25, 2011 hearing.

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ANALYSIS

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The pretrial scheduling order in this action, issued February 8, 2010, precludes

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further amendment to the pleadings “without leave of court, good cause having been shown.”

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(See Scheduling Order, filed Feb. 8, 2010 (Doc. No. 16) at 2.) Therefore, plaintiff’s motion to

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amend can only be granted pursuant to Rule 16(b) of the Federal Rules of Civil Procedure. See

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Under Rule

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16(b), “the focus of the inquiry is upon the moving party’s reasons for seeking modification” and

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their diligence in doing so. Id. at 607-08, 609. See also Noyes v. Kelly Services, 488 F.3d 1163,

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1174 n.6 (9th Cir. 2007) (“Rule 16(b) provides that a district court’s scheduling order may be

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modified upon a showing of ‘good cause,’ an inquiry which focuses on the reasonable diligence

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of the moving party.”) (citing Johnson, 975 F.2d at 609).

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Here, plaintiff’s reason for seeking modification of the scheduling order is based

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on the Ninth Circuit decision in Chapman in which a new pleading standard governing ADA

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claims was announced. That newly announced standard requires plaintiffs presenting a Title III

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claim under the ADA to specifically allege in their complaint how each individual barrier affects

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their disability. (Pl.’s Mot. to Am. (Doc. No. 19.) Numerous district courts within the Ninth

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Circuit have granted plaintiffs asserting ADA claims leave to amend their complaints to adhere

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to the new standard announced in Chapman. See, e.g., Feezor v. Patterson, Civ. No. S-10-1165

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FCD GGH, 2011 WL 1466897, at *4 (E.D. Cal. Apr. 18, 2011) (“Since failure to amend the

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complaint may result in dismissal of the complaint under Chapman, denial of plaintiff’s motion

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would cause plaintiff extreme prejudice at this early stage of the litigation. Accordingly, granting

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leave to amend is proper.”); Kohler v. Flava Enterprises, Inc., Civ. No. S-10-730 IEG NLS, 2011

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WL 666899 (S.D. Cal. Feb. 17, 2011) (recognizing that failure to adhere the complaint to the

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standard articulated in Chapman would result in dismissal of the complaint); Kohler v. Presidio
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Intern, Inc., Civ. No. S-10-4680 PSG PJW, 2011 WL 686060 (C.D. Cal. Feb. 16, 2011) (holding

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that leave to amend should be granted to permit the plaintiff to comply with Chapman’s

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standard); Rush v. CPG Partners, LP, Civ. No. S-10-4662, 2011 WL 561079 (C.D. Cal. Feb. 14,

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2011) (same).

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With respect to diligence, plaintiff could not have been more diligent in seeking

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leave to amend. The en banc decision in Chapman was filed on January 7, 2011. Plaintiff’s

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motion for leave to amend was filed a mere ten days later on January 17, 2011. Moreover,

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despite ample time and opportunity, neither defendant has filed any objection to plaintiff’s

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motion seeking leave to file an amended complaint.

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For the reasons set forth above, IT IS RECOMMENDED that:

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1. Plaintiff’s January 17, 2011 motion to amend his complaint (Doc. No. 19) be

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granted;1 and

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2. That plaintiff be granted twenty-one (21) days to file and serve his amended
complaint.2

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These findings and recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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fourteen days after these findings and recommendations are served on both defendants at the

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address of record for pro se defendant Raghbir Singh Ghoman, defendant Raghbir Singh Ghoman

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The parties are advised that if these findings and recommendations are adopted by the
now assigned District Judge, the undersigned intends to set this matter for a status (pretrial
scheduling) conference before the undersigned at which defendant Raghbir Singh Ghoman will
be ordered to appear.
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Should these findings and recommendations be adopted and plaintiff names Ghoman’s
Properties, LLC as a defendant in his amended complaint, plaintiff is cautioned that although
service of process is not required on a party who is in default for failing to appear, a party must
be served pursuant to Rule 4 of the Federal Rules of Civil Procedure if a pleading asserts a new
claim for relief against that party. See Fed. R. Civ. P. 5(a)(2).
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may file objections thereto with the court.3 A document containing objections should be titled

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may, under certain circumstances, waive the right to appeal the District

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Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: November 9, 2011.

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DAD:6
Ddad1\orders.prose\ocampo1624.lta.f&rs

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Defendant Ghoman’s Properties, LLC may also file written objections with the court
within fourteen days of service of these findings and recommendations but must file them
through counsel.
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