Johnson v. Mcilrath et al

Filing 41

ORDER signed by District Judge Morrison C. England, Jr. on 6/25/2019 DISCHARGING 36 Order to Show Cause, and DENYING 29 Motion for Summary Judgment and 39 Motion to Amend the Complaint. Not later than 20 days following the date this Order is electronically filed, Defendant's counsel is DIRECTED to file a notice complying with Federal Rule of Civil Procedure 25. Within 30 days of the filing of that Notice, Plaintiff is DIRECTED to file a renewed motion to amend the existing complaint. (Huang, H)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

SCOTT JOHNSON,

12

Plaintiff,

13
14
15
16

v.

19
20
21
22
23
24
25
26
27

ORDER

JAY C. MCILRATH, in his individual
and representative capacity as
Trustee—The Mcilrath Family 2002
Trust,
Defendant.

17
18

No. 2:15-cv-00180-MCE-DB

Through the present action, Plaintiff Scott Johnson seeks damages and injunctive
relief against Defendant Jay C. Mcilrath as Trustee of The Mcilrath Family 2002 Trust for
violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12213,
and California’s Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51. Plaintiff
claims he encountered various physical barriers at Defendant’s store in Stockton,
California. Plaintiff has moved for summary judgment, ECF No. 29,1 in response to
which Defendant argues that the Defendant trustee, Jay C. Mcilrath, has passed away
such that entering judgment would be improper, and, in any event, the proper real party
in interest who should be named as Defendant is the Mcilrath Family Limited
1

28

Having determined that oral argument would not be of material assistance, the Court ordered the
Motion submitted on the briefs pursuant to Local Rule 230(g).

1

1

Partnership, ECF No. 31.

2

Given the foregoing, this Court issued an Order to Show Cause (“OSC”) directing

3

Plaintiff to show cause in writing why this action should not be dismissed for failure to

4

name or substitute the proper party. ECF No. 36. Plaintiff timely responded to the OSC,

5

albeit in less than helpful fashion, referring the Court back to his original Motion. ECF

6

No. 38. In addition, however, Plaintiff filed a Motion for Leave to File a First Amended

7

Complaint, asking to substitute in the proper party. ECF No. 39.

8
9

Based on the record before it, it is unclear to the Court who owns the subject
property (i.e., the trust or the limited partnership). What is clear, however, is that Mr.

10

Mcilrath is not a proper Defendant. Accordingly, the OSC is hereby DISCHARGED, and

11

Plaintiff’s Motion for Summary Judgment (ECF No. 29) is DENIED. That said, Plaintiff’s

12

Motion for Leave to Amend (ECF No. 39) is also flawed for failure to address Federal

13

Rule of Civil Procedure 16(b), and is DENIED as well.

14

Finally, the Court notes for the parties that resolving the issue of who owns the

15

property underlying the claims in this action should not require a great deal of judicial

16

intervention and is something that it expects to be clear by the time any further

17

substantive motions are filed.2 In the meantime, not later than twenty (20) days following

18

the date this Order is electronically filed, Defendant’s counsel is directed to file a notice

19

complying with Federal Rule of Civil Procedure 25. Within thirty (30) days of the filing of

20

that Notice, Plaintiff is directed to file, in conformity with Rule 16, a renewed motion to

21

amend the existing complaint.3

22

///

23

///

24
25
26
27
28

2

The Court need not assign responsibility to either side for the mess now before it as there
appears to be ample blame to go around. Indeed, Defendant admitted ownership of the property in the
Answer, ECF No. 4, but now argues a different entity should have been named. Moreover, all of the
parties knew Mr. Mcilrath had passed away, but Defendant chose not to file an official notice of death, and
Plaintiff went ahead and sought summary judgment as against a deceased party, anyway. Going forward,
the Court expects a higher level of professionalism than has been exhibited to this point.
3

A stipulation allowing Plaintiff to amend would be preferable.

2

1

Failure to timely comply with these directives will result in the imposition of

2

sanctions, up to and including terminating sanctions (e.g, dismissing the action or

3

striking Defendant’s answer) upon no further notice to the parties.

4
5

IT IS SO ORDERED.
Dated: June 25, 2019

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3