Harbaruk v. Hogan et al

Filing 28

ORDER and FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/23/2015 GRANTING the plaintiff leave to amend; DEEMING the 20 First Amended Complaint as the operative pleading; DENYING 9 , 12 Motions to Dismiss without prejudice as moot; CONTINUING the Motion Hearing on 23 Motion to Dismiss to 12/9/2015 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan; RECOMMENDING that the 22 Ex Parte Application for a Stay be denied; REFERRING this matter to Judge Garland E. Burrell, Jr.; ORDERING that any objections be filed and served within fourteen days. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HENADZI HARBARUK,

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No. 2:15-cv-1746-GEB-EFB PS (TEMP)

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

THOMAS HOGAN, ESQ., et al.,
Defendants.

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Plaintiff Henadzi Harbaruk is proceeding pro se in this action brought under the Fair

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Housing Act. The matter was referred to the undersigned in accordance with Local Rule

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302(c)(21) and 28 U.S.C. § 636(b)(1).

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On August 21, 2015, plaintiff filed an application for a stay seeking to temporarily restrain

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or enjoin the termination of his commercial tenancy. ECF No. 4. The court denied that

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application without prejudice, in part, because it failed to address plaintiff’s likelihood of success

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on the merits. ECF No. 19. Plaintiff filed another application for a stay asserting in conclusory

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fashion that “there is a great likelihood that the Plaintiff will be successful on the merits of his

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case.” ECF No. 22 at 5. That application again fails to demonstrate a likelihood of success on the

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merits. Indeed, there is a pending motion to dismiss which notes that the Fair Housing Act does

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not apply to a commercial tenancy. ECF No. 23-1. In light of plaintiff’s failure to demonstrate

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“that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the
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absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction

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is in the public interest” his application must be denied. Stormans, Inc. v. Selecky, 586 F.3d 1109,

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1127 (9th Cir. 2009), citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365,

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374 (2008). Accordingly, it is recommended that plaintiff’s October 20, 2015 application for a

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stay be denied.

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Plaintiff also filed a first amended complaint. ECF No. 20. Rule 15(a)(1) of the Federal

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Rules of Civil Procedure provides that “[a] party may amend its pleading once as a matter of

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course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive

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pleading is required, 21 days after service of a responsive pleading or 21 days after service of a

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motion under Rule 12(b), (e), or (f), whichever is earlier.” Here, defendant Thomas Hogan filed a

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motion to dismiss the original complaint on September 4, 2015. ECF No. 9. Plaintiff’s October

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16, 2015 amended complaint was filed more than 21 days after defendant Hogan filed his motion

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to dismiss.

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Nonetheless, Rule 15(a)(2) provides that “[i]n all other cases, a party may amend its

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pleading only with the opposing party’s written consent or the court’s leave. The court should

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freely give leave when justice so requires.” FED. R. CIV. P. 15(a)(2). The policy of freely

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granting leave to amend should be applied with “extreme liberality.” DCD Programs, Ltd. v.

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Leighton, 833 F.2d 183, 186 (9th Cir.1987). Here, plaintiff’s pro se status and the interests of

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judicial economy weigh in favor of granting plaintiff leave to proceed on the amended complaint.

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Moreover, on November 6, 2015 defendant Hogan filed a response to plaintiff’s first

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amended complaint in the form of a motion to dismiss.1 Likewise, on November 9, 2015

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defendants Ben Tiner, Jenny Wilkins and Tiner Properties, Inc., also filed a response to plaintiff’s

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amended complaint in the form of a motion to dismiss and a motion to strike, which are set to be

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heard before the undersigned on December 9, 2015.

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That motion, however, was noticed for hearing before the previously assigned
Magistrate Judge. The hearing of that motion, therefore, will be reset for hearing before the
undersigned.
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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff is granted leave to amend and the amended complaint filed October 16, 2015

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(ECF No. 20) is deemed the operative pleading;
2. Defendants’ motions to dismiss filed September 4, 2015 (ECF No. 9) and September 8,
2015 (ECF No. 12) are denied without prejudice as having been rendered moot; and
3. Defendant Hogan’s motion to dismiss filed November 6, 2015 (ECF No. 23) shall be
heard before the undersigned on December 9, 2015 at 10:00 a.m. in Courtroom No. 8.
Further, IT IS HEREBY RECOMMENDED that plaintiff’s October 20, 2015 ex parte
application for a stay (ECF No. 22) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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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 waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: November 23, 2015.

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