Fowler v. California Highway Patrol et al

Filing 68

ORDER Requiring Supplemental Briefing on 45 Defendants' Motion for Partial Summary Judgment. Signed by Judge Thelton E. Henderson on 04/03/14. (tehlc2, COURT STAFF) (Filed on 4/3/2014)

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 KATHLEEN ANN FOWLER, Plaintiff, 5 v. 6 7 8 CALIFORNIA HIGHWAY PATROL, et al., Case No. 13-cv-01026-TEH ORDER REQUIRING SUPPLEMENTAL BRIEFING ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Defendants. 9 10 United States District Court Northern District of California 11 This matter came before the Court on March 31, 2014, on Defendants’ motion for 12 partial summary judgment. Based on the written briefs and arguments raised at the 13 hearing, the Court hereby ORDERS supplemental briefing on the following issues: 14 First, Defendants argued in their reply brief, for the first time, that Officer Frederick 15 had an independent legal basis to order Plaintiff to stay in the vehicle because California 16 Vehicle Code section 21960 prohibited her from walking on the highway. See Reply at 4- 17 5. While Defendants argued in the initial motion that dangerous conditions existed on the 18 roadway, the Court need not consider the argument that section 21960 provided an 19 independent legal basis for Officer Frederick’s order because it was raised for the first time 20 in the reply brief. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). However, the 21 Court will allow Plaintiff an opportunity to respond to this argument in supplemental 22 briefing. 23 Second, Plaintiff’s counsel, at the hearing, orally sought leave to amend the 24 complaint to add a claim that Plaintiff’s arrest violated the Americans with Disabilities Act 25 in light of the Ninth Circuit’s recent decision in Sheehan v. City and County of San 26 Francisco, 743 F.3d 1211 (9th Cir. 2014), which held that Title II of the ADA applies to 27 arrests. As argued by Defendants’ counsel at the hearing, it appears that Officer Frederick 28 would be entitled to qualified immunity on such a claim. In Sheehan, the court noted that 1 the Ninth Circuit had not previously addressed whether the ADA applies to arrests, and the 2 question was a matter of some disagreement among other circuits. Moreover, the Sheehan 3 case itself was not published until February 21, 2014, thus providing further support that 4 such a right was not clearly established in October 2011 when the alleged violation 5 occurred. In addition to the likely futility of amendment, with trial set to begin on May 20, 6 2014, the Court has concerns about the delay and prejudice that such an amendment on the 7 eve of trial would bring. Out of an abundance of caution, however, the Court will allow 8 Plaintiff to brief why good cause exists to allow amendment of the complaint to add an 9 ADA claim for her arrest. Accordingly, IT IS HEREBY ORDERED THAT: 11 United States District Court Northern District of California 10 1) No later than April 10, 2014, Plaintiff shall file a supplemental brief responding 12 to Defendants’ argument that California Vehicle Code section 21960 provides an 13 independent legal basis for ordering Plaintiff to remain in the vehicle, and, to the extent 14 Plaintiff seeks to amend the complaint to add an ADA claim, Plaintiff shall address the 15 Court’s concerns that such an amendment would be futile, and would cause undue delay 16 and prejudice Defendants at this late procedural stage. This supplemental briefing shall 17 not exceed eight pages in length. 18 19 2) Any reply by Defendants shall be filed no later than April 17, 2014, and shall not exceed five pages in length. 20 21 22 IT IS SO ORDERED. 23 24 25 Dated: 04/03/14 _____________________________________ THELTON E. HENDERSON United States District Judge 26 27 28 2

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