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)

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Case 3:20-cv-00207-MMD-CLB Document 31 Filed 11/19/20 Page 1 of 3 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 HEATH VINCENT FULKERSON, 7 Plaintiff, Case No. 3:20-cv-00207-MMD-CLB ORDER v. 8 9 COSTCO WHOLESALE CORPORATION, 10 Defendant. 11 12 Pro se Plaintiff Heath Fulkerson filed an amended complaint against Defendant 13 Costco Wholesale Corporation (“Costco”) under 28 U.S.C. § 1332 for a single cause of 14 action for negligence arising out of an alleged personal injury at a Costco warehouse on 15 February 6, 2020. (ECF No. 8 (“Amended Complaint”).) Costco filed an answer. (ECF No. 16 10.) Fulkerson then filed a motion to dismiss Costco’s answer (ECF No. 13 (“Dismissal 17 Motion”)), along with a motion to submit the Dismissal Motion (ECF No. 13-1 (“First 18 Submit Motion”)). Upon Costco filing a motion to compel discovery documents (ECF No. 19 26), Fulkerson has filed a motion for an immediate injunction (“Injunction Motion”) and a 20 motion for sanctions (“Sanctions Motion”). (ECF Nos. 27, 28.)1 Plaintiff also filed a motion 21 to submit the Injunction and Sanctions Motions. (ECF No. 29 (“Second Submit Motion”).) 22 As further discussed below, the Court denies Fulkerson’s Dismissal Motion as 23 Costco is entitled to file an answer. The Court also denies Fulkerson’s Injunction and 24 Sanctions Motions as there is insufficient factual or legal basis to grant the Motions. 25 In the Dismissal Motion, Fulkerson argues that Costco’s answer to the amended 26 complaint should be dismissed as Fulkerson has “an admission from the defendant, 27 28 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 1 Costco’s employees that they were at fault for the injuries that occurred on February 6, 2 2020.” (ECF No. 13 at 1.) Under Rule 12 of the Federal Rules of Civil Procedure, “[a] 3 defendant must serve an answer . . . within 21 days after being served with the summons 4 and complaint.” Fed. R. Civ. P. 12(A)(i). Costco is entitled to answer the Amended 5 Complaint. See Evans v. IAC/Interactive Corp., Case No. CV 05-1104 DSF (CWx), 2007 6 WL 7086261, *3 (C.D. Cal. 2007) (discussing that when a court grants a plaintiff’s leave 7 to file an amended complaint, a defendant is “entitled to file an Answer”). The Court 8 therefore denies Fulkerson’s Dismissal Motion. 9 Fulkerson seeks an immediate injunction to remove Costco’s counsel and to 10 “quash any motion filed by the defense.” (ECF No. 27 at 1.) However, “‘[a]n injunction is 11 a matter of equitable discretion’ and is ‘an extraordinary remedy that may only be awarded 12 upon a clear showing that the plaintiff is entitled to such relief.’” Earth Island Inst. v. 13 Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (quoting Winter v. Nat. Res. Def. Council, 555 14 U.S. 7, 22, 32 (2008)). Here, Fulkerson has not shown he is entitled to relief in 15 demonstrating a likelihood of success on the merits, that he will suffer irreparable harm, 16 that the balance of equities favors him, and that such an injunction is in the public interest. 17 See Winter, 555 U.S. at 20. Moreover, Costco’s counsel has seemingly engaged in the 18 ordinary conduct of assisting with Costco’s defense of this lawsuit. The Court therefore 19 denies Fulkerson’s Injunction Motion. 20 Additionally, Fulkerson seeks sanctions “against the defense for wasted time and 21 energy providing the information that defense claims to have not received.” (ECF No. 28 22 at 1.) However, “[f]or a sanction to be validly imposed, the conduct in question must be 23 sanctionable under the authority relied on.” McCabe v. Arave, 827 F.2d 634 (9th Cir. 24 1987) (citing United States v. Stoneberger, 805 F.2d 1391, 1392 (9th Cir. 1986). Here, 25 Fulkerson has not provided such authority. The Court therefore denies Fulkerson’s 26 Sanctions Motion. 27 In sum, the Court denies Fulkerson’s Dismissal, Injunction, and Sanctions Motions. 28 The Court also denies Fulkerson’s First and Second Submit Motions as moot. Fulkerson 2 Case 3:20-cv-00207-MMD-CLB Document 31 Filed 11/19/20 Page 3 of 3 1 does not need to file a motion, or request to submit a motion, each time he seeks to file 2 a motion in this case. 3 4 5 6 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. 7 It is further ordered that Plaintiff’s motion for sanctions (ECF No. 28) is denied. 8 It is further ordered that Plaintiff’s first motion to submit (ECF No. 13-1) is denied 9 10 11 12 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. 13 14 15 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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