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)

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