Moore v. Robinson Oil Corporation
Filing
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Order by Magistrate Judge Howard R. Lloyd granting 21 plaintiff's motion for leave to file first amended complaint. 9/13/2011 hearing vacated. Plaintiff to forthwith file amended complaint as a separate docket entry. Defendant's response due within 7 days thereafter.(hrllc2, COURT STAFF) (Filed on 9/8/2011)
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*E-FILED 09-08-2011*
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NOT FOR CITATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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For the Northern District of California
United States District Court
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No. C10-01014 HRL
RONALD MOORE,
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ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO FILE FIRST
AMENDED COMPLAINT
Plaintiff,
v.
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ROBINSON OIL CORPORATION dba
ROTTEN ROBBIE #42,
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Defendant.
[Re: Docket No. 21]
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Plaintiff Ronald Moore sues for alleged violations of federal and state laws requiring
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equal access for disabled persons. Following a September 2010 site inspection with Moore’s
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access specialist, plaintiff provided a report of alleged barriers to access on the subject
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property—including some that are not identified in the complaint. Moore now moves for leave
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to file a First Amended Complaint to (1) include the additional barriers identified in the
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inspection report and (2) add allegations with respect to his standing to bring suit, which he says
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are required by Chapman v. Pier One Imports, Inc., 631 F.3d 939 (9th Cir. 2011). Defendant
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Robinson Oil Corporation dba Rotten Robbie #42 opposes the motion. All parties have
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expressly consented that all proceedings in this matter may be heard and finally adjudicated by
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the undersigned. 28 U.S.C. § 636(c); FED. R. CIV. P. 73. The matter is deemed appropriate for
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determination without oral argument. CIV. L.R. 7-1(b). Upon consideration of the moving and
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responding papers, this court grants the motion.
and provides that “[t]he court should freely give leave when justice so requires.” FED. R. CIV.
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P. 15(a)(2). The decision whether to grant leave to amend under Rule 15(a) is committed to the
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sound discretion of the trial court. See Waits v. Weller, 653 F.2d 1288, 1290 (9th Cir. 1981).
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Leave need not be granted, however, where the amendment would cause the opposing party
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undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue delay.
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Foman v. Davis, 371 U.S. 178, 182 (1962). “Absent prejudice, or a strong showing of any of
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the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting
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leave to amend.” Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
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Here, defendant does not say anything about the added standing allegations that plaintiff
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For the Northern District of California
Rule 15(a) of the Federal Rules of Civil Procedure governs motions for leave to amend
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United States District Court
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says are required by Chapman. Instead, defendant argues that it would be severely prejudiced if
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plaintiff is permitted to now claim additional barriers to access. Fact discovery closes in about
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one week, and the parties’ expert designations with reports are due by September 28, 2011.
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Defendant contends that Moore is simply too late in seeking amendment and that the delay is
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due to bad faith. However, if the court is inclined to permit the amendment, defendant requests
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that all case management deadlines be extended and that the trial set for February 2012 be
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continued to a later date.
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There was a considerable delay in plaintiff’s request for amendment. As noted above,
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the inspection report identifying the additional alleged barriers was generated nearly one year
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ago. And, the Chapman decision plaintiff cites was issued over eight months ago. Plaintiff
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might well have sought amendment much sooner. Nevertheless, the court does not find that the
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delay was due to bad faith. Here, plaintiff says that, pending settlement discussions, he held off
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on seeking amendment in order to avoid incurring additional litigation fees and costs. In any
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event, while the amendment comes late in the fact discovery period, defendant has not
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convincingly demonstrated any serious prejudice. Although the barriers identified in the
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inspection report may not have been included in the complaint, defendant has known about
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them for quite some time. Defendant was given a copy of the inspection report in October
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2010. The court held an initial case management conference in March 2011 and set a case
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schedule. And, in response to written discovery served by defendant in late June 2011, plaintiff
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identified all of the alleged barriers to access, including those identified in the inspection report.
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(Moore Reply Decl., Ex. A). This court is told that all that remains is to depose plaintiff and
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that his deposition is set for September 16, 2011. On the record presented, the court does not
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find that the amendment would be futile, and defendant makes no argument as to futility in any
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event.
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Based on the foregoing, plaintiff’s motion is granted. He shall forthwith file his First
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Amended Complaint as a separate docket entry. Defendant’s response shall be filed within 7
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days thereafter. FED. R. CIV. P. 15(a)(3). Defendant’s request to modify the current case
management schedule is denied.
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For the Northern District of California
United States District Court
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SO ORDERED.
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Dated: September 8, 2011
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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE
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5:10-cv-01014-HRL Notice has been electronically mailed to:
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Elizabeth Marie Pappy
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Kenneth Randolph Moore
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Tanya Eugene Moore tanya@moorelawfirm.com, marejka@moorelawfirm.com,
natalyn@moorelawfirm.com
epappy@mffmlaw.com, cmacias@mffmlaw.com
natalyn@moorelawfirm.com
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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.
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For the Northern District of California
United States District Court
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