Martinez v. Watt Elkhorn Associates, LP et al

Filing 21

ORDER signed by Judge Morrison C. England, Jr on 1/23/12; Big 5 is accordingly given leave to amend its answer, and is directed to file its proposed amended answer, attached as Exhibit 1 to its opposition, not later than ten (10) days following the date of this order. Having permitted the filing of an amended answer, Plaintiffs motion to strike, alternatively brought as a motion for partial summary judgment (ECF No. 8) is DENIED as moot. (Matson, R) Modified on 1/24/2012 (Matson, R).

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY MARTINEZ,

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Plaintiff,

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No. 2:11-cv-02608-MCE-EFB

ORDER

v.
WATT-ELKHORN ASSOCIATION, LP;
BIG 5 CORP, et al.,

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Defendants.
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----oo0oo----

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Through the present action, Plaintiff Tony Martinez alleges

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that he encountered barriers to access at a store operated by

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Defendant Big 5 Corp. (“Big 5”).

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damages, injunctive and declaratory relief, and attorney’s fees

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and costs under Title III of the Americans With Disabilities Act

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of 1990, 42 U.S.C. §§ 12101, et seq., as well as related

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California statutes.

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Plaintiff’s complaint, Big 5 filed an answer alleging twenty-four

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affirmative defenses.

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///

Plaintiff’s lawsuit seeks

On October 28, 2011, in response to

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Plaintiff now moves to strike those defenses as either factually

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insufficient, legally improper, or both under Federal Rule of

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Civil Procedure 12(f).

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summary judgment under Rule 56 as to the viability of said

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defenses.

Plaintiff alternatively seeks partial

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In opposition to Plaintiff’s motion, Big 5 states that it

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raised multiple affirmative defenses in its answer in order to

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avoid potential waiver of those defenses.

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court fo file an amended answer paring down the affirmative

It requests leave of

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defenses being asserted, and providing additional explication for

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the defenses that it does elect to retain.

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proposed answer, a copy of which is attached to Big 5's

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opposition, reveals only five affirmative defenses in place of

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the original twenty-four.

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obtain a stipulation from Plaintiff to permit the amended answer

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but no agreement from Plaintiff in that regard was forthcoming.

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Review of the

According to Big 5, it sought to

Since the proposed amended answer drastically reduces the

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number of affirmative defenses being pled, it makes no sense

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whatsoever for the court to rule on the presently pending motion

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to dismiss, and its laborious analysis as to each of the original

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defenses.

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original answer appears appropriate.

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no prejudice to Plaintiff from permitting that amendment inasmuch

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as the case was only filed on October 4, 2011, and discovery is

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not even yet underway.

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The Court agrees.

Instead, as Big 5 proposes, leave to amend the
Big 5 argues that there is

Significantly, Plaintiff filed no reply

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taking issue with Big 5's request to file an amended answer, and

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its contention that such an answer would not prejudice Plaintiff.
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Moreover, as is the case with amendment of other pleadings at

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this early stage of litigation, leave to amend should be freely

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given.

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(9th Cir. 1979).

See, e.g., Wyshak v. City Nat. Bank, 607 F.2d 824, 826

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Big 5 is accordingly given leave to amend its answer, and is

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directed to file its proposed amended answer, attached as Exhibit

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1 to its opposition, not later than ten (10) days following the

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date of this order.

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answer, Plaintiff’s motion to strike, alternatively brought as a

Having permitted the filing of an amended

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motion for partial summary judgment (ECF No. 8) is DENIED as

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moot.1

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IT IS SO ORDERED.
Dated: January 23, 2012

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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Because oral argument was not of material assistance, the
Court ordered this matter submitted on the briefs. E.D. Cal.
Local Rule 230(g).
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