Fulkerson v. Costco Wholesale Corporation et al

Filing 31

ORDER - Plaintiff's Motion to Dismiss the Answer (ECF No. 13 ), Motion for an Immediate Injunction (ECF No. 27 ), and Motion for Sanctions (ECF No 28 ) are denied. Plaintiff's First Motion to Submit (ECF No. 13 -1) and Second Motion to Submit (ECF No. 29 ) are denied as moot. Signed by Chief Judge Miranda M. Du on 11/19/2020. (Copies have been distributed pursuant to the NEF - AB)

Case 3:20-cv-00207-MMD-CLB Document 31 Filed 11/19/20 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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HEATH VINCENT FULKERSON,

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Plaintiff,

Case No. 3:20-cv-00207-MMD-CLB
ORDER

v.
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COSTCO WHOLESALE
CORPORATION,

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Defendant.

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Pro se Plaintiff Heath Fulkerson filed an amended complaint against Defendant

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Costco Wholesale Corporation (“Costco”) under 28 U.S.C. § 1332 for a single cause of

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action for negligence arising out of an alleged personal injury at a Costco warehouse on

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February 6, 2020. (ECF No. 8 (“Amended Complaint”).) Costco filed an answer. (ECF No.

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10.) Fulkerson then filed a motion to dismiss Costco’s answer (ECF No. 13 (“Dismissal

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Motion”)), along with a motion to submit the Dismissal Motion (ECF No. 13-1 (“First

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Submit Motion”)). Upon Costco filing a motion to compel discovery documents (ECF No.

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26), Fulkerson has filed a motion for an immediate injunction (“Injunction Motion”) and a

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motion for sanctions (“Sanctions Motion”). (ECF Nos. 27, 28.)1 Plaintiff also filed a motion

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to submit the Injunction and Sanctions Motions. (ECF No. 29 (“Second Submit Motion”).)

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As further discussed below, the Court denies Fulkerson’s Dismissal Motion as

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Costco is entitled to file an answer. The Court also denies Fulkerson’s Injunction and

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Sanctions Motions as there is insufficient factual or legal basis to grant the Motions.

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In the Dismissal Motion, Fulkerson argues that Costco’s answer to the amended

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complaint should be dismissed as Fulkerson has “an admission from the defendant,

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1Fulkerson

submitted both Motions in the same filing but the Motions appear
respectively in the docket as ECF Nos. 27 and 28. Costco filed a response in opposition
to both Motions. (ECF No. 30.)

Case 3:20-cv-00207-MMD-CLB Document 31 Filed 11/19/20 Page 2 of 3

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Costco’s employees that they were at fault for the injuries that occurred on February 6,

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2020.” (ECF No. 13 at 1.) Under Rule 12 of the Federal Rules of Civil Procedure, “[a]

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defendant must serve an answer . . . within 21 days after being served with the summons

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and complaint.” Fed. R. Civ. P. 12(A)(i). Costco is entitled to answer the Amended

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Complaint. See Evans v. IAC/Interactive Corp., Case No. CV 05-1104 DSF (CWx), 2007

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WL 7086261, *3 (C.D. Cal. 2007) (discussing that when a court grants a plaintiff’s leave

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to file an amended complaint, a defendant is “entitled to file an Answer”). The Court

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therefore denies Fulkerson’s Dismissal Motion.

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Fulkerson seeks an immediate injunction to remove Costco’s counsel and to

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“quash any motion filed by the defense.” (ECF No. 27 at 1.) However, “‘[a]n injunction is

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a matter of equitable discretion’ and is ‘an extraordinary remedy that may only be awarded

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upon a clear showing that the plaintiff is entitled to such relief.’” Earth Island Inst. v.

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Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (quoting Winter v. Nat. Res. Def. Council, 555

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U.S. 7, 22, 32 (2008)). Here, Fulkerson has not shown he is entitled to relief in

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demonstrating a likelihood of success on the merits, that he will suffer irreparable harm,

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that the balance of equities favors him, and that such an injunction is in the public interest.

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See Winter, 555 U.S. at 20. Moreover, Costco’s counsel has seemingly engaged in the

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ordinary conduct of assisting with Costco’s defense of this lawsuit. The Court therefore

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denies Fulkerson’s Injunction Motion.

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Additionally, Fulkerson seeks sanctions “against the defense for wasted time and

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energy providing the information that defense claims to have not received.” (ECF No. 28

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at 1.) However, “[f]or a sanction to be validly imposed, the conduct in question must be

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sanctionable under the authority relied on.” McCabe v. Arave, 827 F.2d 634 (9th Cir.

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1987) (citing United States v. Stoneberger, 805 F.2d 1391, 1392 (9th Cir. 1986). Here,

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Fulkerson has not provided such authority. The Court therefore denies Fulkerson’s

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Sanctions Motion.

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In sum, the Court denies Fulkerson’s Dismissal, Injunction, and Sanctions Motions.

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The Court also denies Fulkerson’s First and Second Submit Motions as moot. Fulkerson
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Case 3:20-cv-00207-MMD-CLB Document 31 Filed 11/19/20 Page 3 of 3

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does not need to file a motion, or request to submit a motion, each time he seeks to file

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a motion in this case.

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It is therefore ordered that Plaintiff’s motion to dismiss (ECF No. 13) Defendant’s
answer is denied.
It is further ordered that Plaintiff’s motion for an immediate injunction (ECF No. 27)
is denied.

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It is further ordered that Plaintiff’s motion for sanctions (ECF No. 28) is denied.

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It is further ordered that Plaintiff’s first motion to submit (ECF No. 13-1) is denied

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as moot.
It is further ordered that Plaintiff’s second motion to submit (ECF No. 29) is also
denied as moot.
DATED THIS 19th Day of November 2020.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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