Keyes v. Coley et al

Filing 42

ORDER signed by Judge John A. Mendez on 11/19/2010 GRANTING 36 Motion to Dismiss Kelly Services Inc.. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ­ SACRAMENTO DIVISION CASE NO. 2:09-cv-01297-JAM-EFB Plaintiff, v. GROUND PACKAGE SYSTEM INC.; ORDER GRANTING DEFENDANT KELLY SERVICES, INC.'S MOTION TO DISMISS [Fed. R. Civ. P. 12(b)(1) & 12(b)(6)] Date: Time: Courtroom: Judge: Trial Date: November 3, 2010 9:30 a.m. 6 Hon. John A. Mendez March 14, 2011 9 E. B. KEYES, 10 11 12 CHRIS COLEY, an individual; FED EX 13 GENERAL SERVICE 14 INC., 15 16 17 ADMINISTRATION; KELLY SERVICES Defendants. Defendant Kelly Services, Inc.'s motion to dismiss plaintiff's First Amended Complaint 18 came for hearing on November 3, 2010, the Honorable John A. Mendez, presiding. James J. 19 Achermann of The Law Offices of Nevin & Absalom appeared on behalf of plaintiff E.B. Keyes 20 and E. Joseph Connaughton of Paul, Plevin, Sullivan & Connaughton LLP appeared on behalf of 21 defendant Kelly Services, Inc. ("Kelly"). 22 After reviewing the papers and hearing oral argument thereon, the Court orders that 23 defendant Kelly's motion to dismiss is GRANTED. 24 In order for a party to amend a complaint to add a new party after the applicable statutes of 25 limitation have run, the amending party must show that: 26 (1) he or she asserted a claim or defense that arose out of the conduct, transaction, or 27 occurrence set in the original pleading; (2) the new party received such notice of the action that it 28 will not be prejudiced in defending on the merits within the time period for serving the summons Order Granting Defendant Kelly Services Motion to Dismiss Plaintiff's First Amended Complaint 1 2:09-cv-01297-JAM-EFB PDF created with pdfFactory trial version www.pdffactory.com 1 and complaint under Rule 4(m) - 120 days; and (3) the new party knew or should have known that 2 the action would have been brought against it, but for a mistake concerning the proper party's 3 identity within 120 days of serving the summons and complaint. Fed. R. Civ. P. 15(c)(1)(C). 4 Here, plaintiff Keyes admittedly has sought to add Kelly Services as a new party after the 5 applicable statutes of limitation have expired. (See First Amended Complaint.) But plaintiff Keyes 6 cannot show that: 1) Kelly received notice of the action within 120 days of its filing; 2) that Kelly 7 knew or should have known that the action would have been brought against it but for a mistake 8 concerning its identity; or 3) that his failure to name Kelly was a qualifying mistake under Rule 9 15(c) given his knowledge of Kelly's status and role as shown in plaintiff's Exhibit A. 10 Because plaintiff Keyes has failed to meet multiple elements required by Rule 15(c), this 11 Court need not reach Kelly's arguments that plaintiff Keyes failed to exhaust his required 12 administrative remedies and also failed to state a claim upon which relief may be granted. 13 IT IS SO ORDERED. /s/ John A. Mendez_______________________________ HONORABLE JOHN A. MENDEZ JUDGE OF THE UNITED STATES DISTRICT COURT LAW OFFICES OF NEVIN & ABSALOM By: /s/ James K. Achermann (as authorized on 11/17/10) Kenneth Absalom James J. Achermann Attorneys for Plaintiff Dated: November 19, 2010 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP By: /s/ E. Joseph Connaughton E. JOSEPH CONNAUGHTON MICHAEL J. ETCHEPARE Attorneys for Defendant KELLY SERVICES, INC. 14 Dated: November 19, 2010 15 16 APPROVED AS TO FORM: 17 18 19 20 21 22 23 24 25 26 27 28 Dated: November 18, 2010 Order Granting Defendant Kelly Services Motion to Dismiss Plaintiff's First Amended Complaint 2 2:09-cv-01297-JAM-EFB PDF created with pdfFactory trial version www.pdffactory.com

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