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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?