Hernandez v. Polanco Enterprises, Inc et al

Filing 35

ORDER by Judge Yvonne Gonzalez Rogers granting 32 Motion for Leave to File An Amended Complaint; Plaintiff is required to E-FILE the amended complaint by 8/10/12. The Court VACATES the hearing set for August 21, 2012. (fs, COURT STAFF) (Filed on 8/8/2012)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 ALMA CLARISA HERNANDEZ, Plaintiff, 10 Northern District of California United States District Court 11 12 Case No.: 11-CV-02247 YGR ORDER GRANTING MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT vs. POLANCO ENTERPRISES, INC. et al., 13 Defendants. 14 Having carefully considered the Motion of Plaintiff Alma Clarisa Hernandez for leave to file 15 16 her First Amended Complaint, the papers submitted and the pleadings in this action, the Court hereby 17 GRANTS the Motion.1 Under Federal Rule of Civil Procedure 15(a), leave to amend should be freely given when 18 19 justice so requires. Fed. R. Civ. P. 15(a). Factors the Court should consider include the presence or 20 absence of undue delay, bad faith, undue prejudice, or repeated failure to cure deficiencies by 21 previous amendment or futility of the proposed amendment. Moore v. Kayport Package Exp., Inc., 22 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). “Leave to 23 amend need not be given if a complaint, as amended, is subject to dismissal.” Moore, supra, 885 F.2d 24 at 538. Defendants oppose the motion on the grounds that amendment would be futile. According to 25 26 27 28 Defendants, Plaintiff’s Proposed Amended Complaint fails to cure problems with her original 1 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds this motion appropriate for decision without oral argument. Accordingly, the Court VACATES the hearing set for August 21, 2012. 1 complaint.2 First, Defendants argue that the proposed amended complaint fails to allege the date on 2 which Plaintiff visited the facility. Defendants do not provide any legal authority to support their 3 assertion that the date the Plaintiff visited the facility is an essential element of a claim under the 4 ADA. Instead, it appears that Defendants hope to be able to raise the affirmative defense that the 5 action is time-barred under the applicable statute of limitations on a motion to dismiss rather than a 6 motion for summary judgment. claims because the Proposed Amended Complaint does not identify which of the barriers Plaintiff 9 encountered or how her particular disability was affected by each barrier. “[W]hen an ADA plaintiff 10 has suffered an injury-in-fact by encountering a barrier that deprives h[er] of full and equal enjoyment 11 Northern District of California Next, Defendants argue that Plaintiff fails to allege Article III standing to assert her ADA 8 United States District Court 7 of the facility due to h[er] particular disability, [s]he has standing to sue for injunctive relief as to that 12 barrier and other barriers related to h[er] disability, even if [s]he is not deterred from returning to the 13 public accommodation at issue.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 14 2011). Plaintiff alleges that she was confined to a wheelchair and could not enter Defendant’s facility 15 because there was no wheelchair clearance outside the entrance door. See Proposed Amended 16 Complaint, Dkt. No. 32-2, ¶¶ 8, 10. Plaintiff further alleges that this barrier prevented her from use 17 and enjoyment of the facility due to her disability. Id. ¶ 10. Accordingly, it appears that the Proposed 18 Amended Complaint establishes that Plaintiff has standing under the ADA, including standing to sue 19 for injunctive relief as to unencountered barriers related to her disability. See Chapman, supra, 631 20 F.3d at 944 (“an ADA plaintiff who establishes standing as to encountered barriers may also sue for 21 injunctive relief as to unencountered barriers related to h[er] disability.”). Finally, Defendants argue that at least two of the more than forty violations that Plaintiff 22 23 identifies are not related to Plaintiff’s disability. Plaintiff argues that all violations are related to her 24 disability. Even if Plaintiff has identified two violations that are not related to her disability, this does 25 not make amendment futile―Plaintiff has identified approximately forty other violations related to 26 her disability. 27 28 2 The Court notes that Defendants chose to answer the Complaint rather than challenge any of those problems. 2 1 2 3 4 5 6 7 8 Based on the foregoing analysis, the Motion for Leave to File an Amended Complaint is GRANTED. By no later than August 10, 2012, Plaintiff shall file her First Amended Complaint, attached as Exhibit A to Plaintiff’s Memorandum of Points and Authorities, Dkt. No. 32-2. This Order Terminates Docket Number 32. IT IS SO ORDERED. Date: August 8, 2012 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 9 10 Northern District of California United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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