Yates v. Delano Retail Partners LLC et al

Filing 70

ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS 49 MOTION FOR LEAVE TO AMEND; Plaintiff is required to E-FILE the amended document forthwith. (ndr, COURT STAFF) (Filed on 6/28/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CRAIG YATES,

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No. C 10-3073 CW

Plaintiff,

ORDER GRANTING
PLAINTIFF’S MOTION
FOR LEAVE TO AMEND
(Docket No. 49)

v.

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DELANO RETAIL PARTNERS, LLC,
doing business as DELANO’S IGA
MARKET #1; and ARTHUR S. BECKER,
as Trustee of the ARTHUR S.
BECKER REVOCABLE LIVING TRUST,

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Defendants.

United States District Court
For the Northern District of California

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________________________________/
Plaintiff Craig Yates moves for leave to file a first amended

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complaint.

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S. Becker Revocable Living Trust, opposes Plaintiff’s motion.

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motion was taken under submission on the papers.

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considered the papers filed by the parties, the Court GRANTS

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Plaintiff’s motion.

Defendant Arthur S. Becker, as Trustee of the Arthur

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The

Having

BACKGROUND

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Plaintiff initiated this case on July 13, 2010, against

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Defendants Delano Retail Partners, LLC, a company which rents the

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property and operates Delano’s Market in San Francisco,

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California, and Arthur S. Becker, Trustee of the Arthur S. Becker

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Revocable Trust, the owner of the property and landlord to Delano

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Retail Partners.

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physical disabilities and brings this action against Defendants

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for failure to remove architectural barriers at the Delano’s

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Market, thereby denying him and others with physical disabilities

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access to, and full and equal enjoyment of, the grocery store on

Plaintiff alleges that he is a person with

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August 19, 2009, March 27, 2010, May 6, 2010, May 16, 2010 and

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June 6, 2010.

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statutory damages under the Americans with Disabilities Act of

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1990 (ADA), 42 U.S.C. § 12101, et seq., the Unruh Civil Rights

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Act, California Civil Code §§ 51, 51.5, California Health and

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Safety Code §§ 19955, et seq., and the California Disabled Persons

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Act, California Civil Code §§ 54, 54.1 and 54.3.

Plaintiff asserts claims for injunctive relief and

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On February 10, 2012, Plaintiff filed a notice that Delano

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Retail Partners had filed for bankruptcy and was entitled to an

United States District Court
For the Northern District of California

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automatic stay.

See Docket No. 33.

In a case management statement filed on February 15, 2012,

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Plaintiff stated that Delano Retail Partners “had entered into an

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injunctive relief agreement” with Plaintiff “to remove barriers

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and in fact removed barriers.”

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Docket No. 34, 3.

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completed,” Plaintiff no longer seeks injunctive relief and seeks

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only “statutory damages, attorneys’ fees, costs and litigation

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expenses.”

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“amend the complaint to name Ralphs Grocery Company which was not

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disclosed in Rule 26 and for post complaint visits where he

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encountered barriers.”

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Joint Case Management Statement,

Because “[t]he remedial repairs have been

Id. at 7.

Plaintiff also stated that he intended to

Id. at 4.

On March 22, 2012, the Court held an initial case management

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conference.

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46, 1.

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Plaintiff to provide a copy of his proposed amended complaint to

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Becker by April 5, 2012 to allow Becker to determine if he would

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stipulate to the amendment.

Minute Order and Case Management Order, Docket No.

At the case management conference, the Court directed

Id.

The Court ordered that, if he

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was unable to obtain a stipulation, Plaintiff was to file his

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motion for leave to amend the complaint by April 12, 2012.

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Id.

On April 3, 2012, Plaintiff’s counsel emailed a copy of his

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proposed first amended complaint to Becker and requested that

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Becker stipulate to its filing.

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Parte Appl. ¶ 2, Docket No. 55.

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Frankovich Decl. in Supp. of Ex

On April 12, 2012, having received no response from Becker,

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Plaintiff filed the instant motion for leave to amend.

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¶ 3; Docket No. 49.

United States District Court
For the Northern District of California

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Id. at

On April 26, 2012, Becker filed an opposition to Plaintiff’s

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motion, noting, among other things, that Plaintiff had not filed

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his proposed amended complaint in the docket of the case.

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No. 51.

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Docket

On April 27, 2012, Plaintiff filed his proposed first amended
complaint.

Docket No. 52.

On May 2, 2012, Plaintiff filed an ex parte application to

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continue the hearing on his motion for leave to amend and to

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extend the time for Becker to respond.

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application, Plaintiff noted that, while he had sent a copy of the

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proposed first amended complaint to Becker on April 3, he had

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inadvertently failed to file it with his motion.

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Docket No. 54.

In the

Id.

On May 4, 2012, the Court granted Plaintiff’s ex parte
application.

Docket No. 57.

On May 16, 2012, Becker filed a revised opposition to
Plaintiff’s motion.

Docket No. 59.

On May 24, 20120, Plaintiff filed his reply to Becker’s
revised opposition.

Docket No. 60.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 15(a) provides that leave of

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the court allowing a party to amend its pleading “shall be freely

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given when justice so requires.”

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liberal policy towards amendment, the nonmoving party bears the

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burden of demonstrating why leave to amend should not be granted."

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Genentech, Inc. v. Abbott Laboratories, 127 F.R.D. 529, 530-531

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(N.D. Cal. 1989) (citing Senza-Gel Corp. v. Seiffhart, 803 F.2d

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661, 666 (Fed. Cir. 1986)).

Because “Rule 15 favors a

Courts consider five factors when

United States District Court
For the Northern District of California

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assessing the propriety of a motion for leave to amend: undue

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delay, bad faith, futility of amendment, prejudice to the opposing

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party and whether the plaintiff has previously amended the

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complaint.

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1055 n.3 (9th Cir. 2009).

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denial.”

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1079 (9th Cir. 1990).

Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051,
Delay is “not alone enough to support

Morongo Band of Mission Indians v. Rose, 893 F.2d 1074,

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DISCUSSION

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Becker first argues that Plaintiff’s motion for leave to

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amend should be denied, because he failed to state exhaustively

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and with particularity in his motion the additional allegations

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that he sought to add to his complaint, in violation of Rule 7.

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In relevant part, Rule 7(b)(1) requires that a motion must

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“state with particularity the grounds for seeking the order; and

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state the relief sought.”

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7(b)(1).

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is to afford notice of the grounds and prayer of the motion to

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both the court and to the opposing party, providing that party

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with a meaningful opportunity to respond and the court with enough

Federal Rule of Civil Procedure

“The purpose of the particularity requirement in Rule 7

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information to process the motion correctly.”

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Control Systems, Inc. v. Compusystems, Inc., 922 F.2d 805, 807

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(Fed. Cir. 1990).

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overly technical fashion when the purpose behind the rule is not

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jeopardized.”

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Cir. 2008) (internal citations and quotations omitted).

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Feldberg v. Quechee Lakes Corp., 463 F.3d 195, 197 (2d Cir. 2006)

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(“The particularity requirement is flexible and has been

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interpreted liberally by the courts.”) (internal citations and

Registration

The requirement “should not be applied in an

Hinz v. Neuroscience, Inc., 538 F.3d 979, 983 (8th
See also

United States District Court
For the Northern District of California

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quotations omitted).

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has been prejudiced by the movant’s lack of particularity and

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whether the court can comprehend the basis of the motion and deal

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with it fairly.”

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Procedure § 1192.

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Practice § 7.03[4][a] (“Motions worded very generally have been

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found sufficiently particular when the opposing party had notice

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of the specific basis for the motion”).

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Courts generally consider “whether any party

5 Wright & Miller, Federal Practice and
See also 2 James Wm. Moore, Moore’s Federal

Although Plaintiff did not directly state in his motion that

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he sought leave to amend his complaint to add violations that

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occurred on dates not previously specified, he provided sufficient

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notice thereof to Becker and to the Court to allow Becker a fair

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and meaningful opportunity to oppose the motion and to allow the

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Court to address it adequately.

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Plaintiff clearly stated in the parties’ joint case management

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statement that he intended to amend the complaint to add

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allegations related to additional visits to the grocery store.

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provided Becker a copy of the proposed amended complaint prior to

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filing his motion, more than three weeks before the original

Prior to filing his motion,

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He

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deadline for Becker to file his opposition.

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allowed an additional opportunity to oppose the motion after the

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proposed amended complaint was filed in the docket of this case.

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Accordingly, the Court rejects Becker’s argument that the instant

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motion fails in whole or in part under Rule 7.

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Further, Becker was

Becker further contends that Plaintiff’s motion impermissibly

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discloses confidential statements made in mediation in violation

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of the standard confidentiality agreement signed by the parties in

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connection with mediation through the Court’s Alternative Dispute

United States District Court
For the Northern District of California

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Resolution (ADR) program.

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disclosed confidential information in his present motion by

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stating that he “learned by unorthodox means that Ralph’s Grocery

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Store is supposedly the holder of the master lease,” because he

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learned this during a conversation in mediation.

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4.

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Becker states that Plaintiff has

Revised Opp. at

In the confidentiality agreement, the parties agreed “that

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they shall treat as ‘confidential information’ anything that

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happened or was said in connection with the ADR session,” and that

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such information would “not be disclosed to the assigned judge,

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and shall not be used for any purpose, including impeachment in

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any pending or future purpose,” subject to certain exceptions in

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the ADR Local Rules.

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further agreed “that evidence admissible or subject to discovery

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or disclosure shall not be inadmissible or protected from

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disclosure solely by reason of its introduction or use” in

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mediation.

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the actual leaseholder is a required disclosure.

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Federal Rule of Civil Procedure 26(a)(1)(A); Civil Local Rule

Id.

Chilleen Decl., Ex. A.

However, the parties

That Ralph’s Grocery is an interested party and

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See, e.g.,

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3-16(b); Standing Order for All Judges of the Northern District of

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California ¶ 19.

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mediation session, instead of in the form that it should have been

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disclosed, does not create an absolute bar to Plaintiff referring

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to it.

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Thus, that this fact was first disclosed at a

Becker also argues that the proposed amendments were made in

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bad faith and are futile, because Plaintiff has not removed his

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demand for injunctive relief from his amended complaint, although

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Plaintiff has acknowledged that remedial repairs have been

United States District Court
For the Northern District of California

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completed and that he is no longer asking the Court to award such

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relief.

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complaint, see, e.g., Compl. ¶¶ 25, 44, 62, and is not added by

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the amendment.

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amendment to the complaint would be in bad faith or futile.

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Further, Plaintiff has adequately explained his desire to maintain

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the allegations related to injunctive relief in that they are

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material to, and incorporated into, his continuing claims for

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attorneys’ fees under the ADA and for damages and attorneys’ fees

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under state law.

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The request for injunctive relief is in the original

Thus, Defendant has not established that any

Finally, Becker contends that amendment would unduly

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prejudice him.

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have to defend against the request for injunctive relief; however,

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again, this request is not added by the proposed amendment and

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would exist in the complaint, even if leave to amend were denied.

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Becker does not explain how any allegation added to the complaint

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would increase his discovery burdens.

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that amendment would likely require amendment of the scheduling

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order to allow the new defendant to conduct discovery, any

Becker first argues that it would prejudice him to

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While Plaintiff concedes

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prejudice from the possible adjustment of case management

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deadlines is outweighed by the additional time and expense that

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would ensue if Plaintiff filed a new lawsuit against Ralph’s

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Grocery arising out of the same events at issue here.

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CONCLUSION

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For the reasons set forth above, the Court GRANTS Plaintiff’s

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motion for leave to file the first amended complaint (Docket No.

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49).

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possible, but in no later than twenty-eight days.

United States District Court
For the Northern District of California

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Plaintiff shall file it forthwith and serve it as soon as

The Court finds good cause to amend the case management

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schedule as follows:

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Event

Date

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Completion of fact discovery

September 6, 2012

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Disclosure of identities and reports of
expert witnesses

August 8, 2012

Completion of expert discovery

September 6, 2012

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The Court maintains the other dates in the case management
schedule at this time, including the further case management
conference and hearing on case-dispositive motions, which are
scheduled to occur on October 25, 2012 at 2:00 p.m.

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The Court will entertain a stipulation or a motion to change

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the case management schedule, provided that opposing briefs on the

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dispositive motions are filed in series as described in the case

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management order, Docket No. 46, not contemporaneously, that the

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parties’ briefing is completed at least two weeks prior to the

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hearing date, and that the hearing on the motions for summary

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judgment takes place at least three months before the start of

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trial.

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United States District Court
For the Northern District of California

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IT IS SO ORDERED.
Dated:

6/28/2012

CLAUDIA WILKEN
United States District Judge

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