Epstein v. Secretary Robert A. McDonald

Filing 23

ORDER granting Plaintiff's 14 Motion for Leave to File Amended Complaint. Court orders Plaintiff to file the Third Amended Complaint by 5/15/2017. Court terminates as moot Government's 9 Motion to Dismiss and 9 Motion to Strike. If Plaintiff fails to file her Third Amended Complaint by the aforementioned date, the Government may file an ex parte application requesting that Court reinstate its motions to dismiss and strike. Signed by Judge Cynthia Bashant on 4/21/2017. (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTINE MARTIN EPSTEIN, Plaintiff, 12 13 14 15 16 Case No. 16-cv-2929-BAS(WVG) ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT v. [ECF No. 14] SECRETARY ROBERT A. MCDONALD, et al., Defendants. 17 18 On December 1, 2016, Plaintiff Christine Martin Epstein, who proceeds pro 19 se, commenced this action, individually and on behalf of her deceased brother, Peter 20 Elwood Martin, against Defendants Secretary Robert A. McDonald and the 21 Department of Veteran Affairs (collectively, the “Government”) for negligence and 22 professional malpractice in connection with the care provided to Mr. Martin. Ms. 23 Epstein amended her complaint twice, with the operative complaint being the Second 24 Amended Complaint (“SAC”). Ms. Martin now moves for leave to file a Third 25 Amended Complaint (“TAC”). The Government opposes. 26 The Court finds this motion suitable for determination on the papers submitted 27 and without oral argument. See Civ. L.R. 7.1(d)(1). For the following reasons, the 28 Court GRANTS Ms. Epstein’s motion. –1– 16cv2929 1 I. LEGAL STANDARD 2 Rule 15(a) of the Federal Rules of Civil Procedure provides that after a 3 responsive pleading has been served, a party may amend its complaint only with the 4 opposing party’s written consent or the court’s leave. Fed. R. Civ. P. 15(a). “The 5 court should freely give leave when justice so requires,” and apply this policy with 6 “extreme liberality.” Id.; DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th 7 Cir. 1987). However, leave to amend is not to be granted automatically. Zivkovic v. 8 S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Jackson v. Bank of 9 Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990)). Granting leave to amend rests in the 10 sound discretion of the district court. Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 11 1331 (9th Cir. 1996). 12 The Court considers five factors in assessing a motion for leave to amend: (1) 13 bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of the 14 amendment, and (5) whether the plaintiff has previously amended the complaint. 15 Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004); see also Foman v. Davis, 16 371 U.S. 178, 182 (1962). The party opposing amendment bears the burden of 17 showing any of the factors above. See DCD Programs, 833 F.2d at 186. Of these 18 factors, prejudice to the opposing party carries the greatest weight. Eminence Capital, 19 LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). However, absent prejudice, 20 a strong showing of the other factors may support denying leave to amend. See id. 21 22 II. ANALYSIS 23 Though the Government carries the burden of demonstrating the Forman 24 factors, without relying on any legal authority, the entirety of the Government’s 25 argument opposing Ms. Epstein’s motion is as follows: 26 // 27 // 28 // –2– 16cv2929 7 The United States submits that it is premature for Plaintiff to file a TAC as the Court has yet to rule on the United States’ Motion regarding the same issues of jurisdiction and the immateriality of the same specific paragraphs found in Plaintiff’s SAC. The Court should, therefore, deny Plaintiff’s request for leave to file her proposed TAC. In the alternative, the Court should stay ruling on Plaintiff’s motion for leave to amend and allow the parties to supplement their respective pleadings within two weeks of its ruling on the United States’ Motion. 8 (Gov’t’s Opp’n 3:8-14.) The Government’s point appears to be a practical one: 9 because the relevant facts regarding jurisdiction and immateriality are the same in 10 the SAC and proposed TAC, the Court should first rule on the Government’s motions 11 to dismiss the SAC and strike non-relevant allegations before reaching Ms. Epstein’s 12 motion for leave to file an amended complaint. 1 2 3 4 5 6 13 Generally, the resolution of jurisdictional issues is of the highest priority when 14 an action commences. See, e.g., Leroy v. Great W. United Corp., 443 U.S. 173, 180 15 (1979) (“[N]either personal jurisdiction nor venue is fundamentally preliminary in 16 the sense that subject-matter jurisdiction is, for both are personal privileges of the 17 defendant, rather than absolute strictures on the court[.]). Despite there being a 18 general order of priority, it is not mandatory. See Sinochem Int’l Co. Ltd. v. Malaysia 19 Int’l Shipping Corp., 549 U.S. 422, 431 (2007). “[A] federal court has leeway to 20 choose among threshold grounds for denying audience to a case on the merits.” Id. 21 For example, “a district court declining to adjudicate state-law claims on 22 discretionary grounds need not first determine whether those claims fall within its 23 pendent jurisdiction.” Id. (citing Moor v. Cnty. Of Alameda, 411 U.S. 693, 715-16 24 (1973)). “Nor must a federal court decide whether the parties present an Article III 25 case or controversy before abstaining under Younger v. Harris[.]” Id. (citing Ellis v. 26 Dyson, 421 U.S. 426, 433-34 (1975)). In short, the decision to consider the 27 Government’s motion before Ms. Epstein’s, or vice versa, is within the Court’s 28 discretion. –3– 16cv2929 1 Reviewing the circumstances of this case, the Court first notes that the 2 Government fails to carry its burden of demonstrating that the Foman factors weigh 3 in favor of denying Ms. Epstein’s Rule 15(a) motion. See DCD Programs, 833 F.2d 4 at 186. Though there may be substantial similarities between the SAC and proposed 5 TAC, it is important to first resolve which complaint is operative. If the Government 6 determines that the same challenges asserted in its motion apply to the proposed 7 TAC, it may re-file its motion. 8 The Government also requests in the alternative that the Court stay ruling on 9 Ms. Epstein’s motion and “allow the parties to supplement their respective pleadings 10 within two weeks of its ruling on the United States’ Motion.” (Gov’t’s Opp’n. 3:8- 11 14.) However, Federal Rule of Civil Procedure 15(d) only permits supplemental 12 pleadings “setting out any transaction, occurrence, or event that happened after the 13 date of the pleading to be supplemented.” See Eid v. Alaska Airlines, Inc., 621 F.3d 14 858, 874 (9th Cir. 2010). Consequently, the Government’s alternative request 15 involving supplemental pleadings would be an improper use of supplemental 16 pleadings permitted by Rule 15(d). 17 18 III. CONCLUSION & ORDER 19 In light of the foregoing, and exercising its discretion, the Court GRANTS 20 Ms. Epstein’s motion for leave to file an amended complaint based on the 21 Government’s failure to carry its burden under Rule 15(a). (ECF No. 14.) 22 Accordingly, the Court ORDERS Ms. Epstein to file the Third Amended Complaint 23 attached to her motion no later than May 15, 2017. 24 Furthermore, in anticipation of Ms. Epstein filing her Third Amended 25 Complaint, the Court TERMINATES AS MOOT the Government’s motions to 26 dismiss and strike (ECF No. 9). See Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 27 (9th Cir. 2011) (“[I]t is well-established that an amended complaint supersedes the 28 original, the latter being treated thereafter as non-existent.”); see also Ortegoza v. –4– 16cv2929 1 Kho, No. 12-cv-529-L(KSC), 2012 WL 5304859, at *1 (S.D. Cal. Oct. 25, 2012) 2 (Lorenz, J.) (citing Lacey v. Maricopa Cnty., 649 F.3d 1118, 1137 (9th Cir. 2011) 3 (“As a general rule, ‘[an] amended complaint supersedes the original, the latter being 4 treated thereafter as nonexistent.’”). If Ms. Epstein fails to file her Third Amended 5 Complaint by the aforementioned date, the Government may file an ex parte 6 application requesting that the Court reinstate its motions to dismiss and strike. 7 IT IS SO ORDERED. 8 9 DATED: April 21, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –5– 16cv2929

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