Opinion
No. 2:14-cv-02323-JAM-EFB
05-09-2016
SCOTT JOHNSON, Plaintiff, v. KELLIE ANNE JACOB, in her individual and representative capacity as Trustee—The Kellie Anne Revocable Trust; and VALLEY BREWING COMPANY, INC., a California Corporation, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT
Presently before the Court is Plaintiff Scott Johnson's ("Plaintiff's") Motion for Leave to File a First Amended Complaint (FAC) (Doc. #36). Plaintiff brought this action based on barriers to access he encountered at the Valley Brewing Company, Inc. establishment ("Valley Brew"). Defendants Kellie Anne Jacob and Valley Brewing Company, Inc. ("Defendants") oppose the motion (Doc. #38), and Plaintiff has filed a reply (Doc. #40). For the following reasons, Plaintiff's motion is GRANTED.
The Court has considered only the first five pages of the late-filed reply brief, as Plaintiff was advised in the Status (Pre-Trial Scheduling) Order (PTSO) that "the Court will not consider any arguments made past the page limit" of five pages for reply memoranda. PTSO (Doc. #28) at 3:2-3.
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for May 3, 2016. --------
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Plaintiff's original complaint, filed October 3, 2014, alleges violations of the (1) Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq., (2) Unruh Civil Rights Act, Cal. Civ. Code §§ 51-53, (3) California Disabled Persons Act, id. §§ 54-54.8, and (4) a cause of action for negligence (Doc. #1). Defendants filed their answer on June 26, 2015 (Doc. #21). On December 8, 2015, both parties' experts conducted a site inspection of Valley Brew. Mot. 2:17-20; Opp'n 2:1. On March 15, 2016, Plaintiff filed the current motion.
II. OPINION
A. Legal Standard
In his motion, Plaintiff relies on the standard set out in Federal Rule of Civil Procedure ("Rule") 15(a)(2), which provides: "[A] party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). However, the Court has already issued a PTSO in this matter specifying amendments to the pleadings require a showing of good cause.
Although Rule "15(a) liberally allows for amendments to pleadings," Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000), this policy does not apply after a district court has issued "a pretrial scheduling order that established a timetable for amending the pleadings, and the deadline ha[s] expired." Id. Rather, parties seeking to amend their pleadings "must show good cause for not having amended their complaints before the time specified in the scheduling order expired." Id. "This standard 'primarily considers the diligence of the party seeking the amendment.'" Id. (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).
If good cause exists, parties next must satisfy Rule 15(a). Cf. Johnson, 975 F.2d at 608. As stated, Rule 15(a)(2) makes clear that courts should "freely give leave when justice so requires," Fed. R. Civ. P. 15(a)(2), and the Ninth Circuit has noted that the policy is one "to be applied with extreme liberality," Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). In exercising their discretion to permit or deny a party to amend its pleading, Ninth Circuit courts consider five factors: (1) whether the amendment was filed with undue delay; (2) whether the movant has requested the amendment in bad faith or as a dilatory tactic; (3) whether the movant was allowed to make previous amendments which failed to correct deficiencies of the complaint; (4) whether the amendment will unduly prejudice the opposing party; and (5) whether the amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). Whether amendment will unduly prejudice the opposing party is the most important factor in a court's analysis under Rule 15(a). Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
B. Analysis
Plaintiff seeks to amend his Complaint as follows: remove his California Disabled Persons Act and negligence causes of action; include violations discovered after the site inspection; and clarify whether violations occurred before or after a renovation to the Valley Brew property. Defendants argue in their opposition that Plaintiff does not have standing to sue under the ADA, and therefore, amendment would be futile.
1. Rule 16
Although the parties do not address Rule 16, the Court must nonetheless first determine whether Plaintiff meets Rule 16's good cause requirement. The initial Complaint advised Defendants in pertinent part: "Plaintiff will amend the complaint, to provide proper notice regarding the scope of this lawsuit, once he conducts a site inspection." Compl. ¶ 18. The site inspection occurred on December 8, 2015, after Plaintiff requested a site inspection as early as January 27, 2015. Mot. 1:23-25, 2:17-20; Opp'n 2:1. Thereafter, Defendants' expert issued his report on January 29, 2016, Decl. of Kim Blackseth ¶ 2, and Plaintiff's expert issued his report on February 24, 2016, Decl. of Paul Bishop ¶ 5. Plaintiff filed this motion on March 15, 2016, which is less than a month after Plaintiff's expert issued his report, and the amendment incorporates information from the reports. Overall, Plaintiff has established he was diligent in seeking the amendment; accordingly, Plaintiff meets Rule 16's good cause requirement.
2. Rule 15
Once the movant establishes good cause under Rule 16, the Court will then consider the permissibility of amendment under Rule 15. Cf. Johnson, 975 F.2d at 608. On balance, the Rule 15 factors favor Plaintiff. Plaintiff has not previously been granted leave to amend, and for the reasons discussed above, the undue delay factor weighs in favor of granting amendment. Furthermore, nothing in the record supports the conclusion that Plaintiff acted in bad faith in filing this motion. Nor does it appear to the Court that amendment will unduly prejudice Defendants.
Defendants argue, however, that granting leave to amend would be futile. Proposed amendment to pleading is "futile," and properly denied by a court, "only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Sweaney v. Ada Cty., Idaho, 119 F.3d 1385, 1393 (9th Cir. 1997). Specifically, Defendants contend that Plaintiff has failed to allege "how each of the alleged barriers (new or old) affect[s] his specific disability," and he therefore lacks standing to bring an ADA cause of action. Opp'n 2:6-8 (emphasis removed).
To allege standing in this action, Plaintiff must allege that he has suffered an injury-in-fact, that the injury is traceable to Defendants' actions, and that the injury can be redressed by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice . . . ." Id. at 561. As relevant here, a disabled person "has suffered an injury-in-fact by encountering a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability." Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011). The Ninth Circuit has explained:
Once a disabled individual has encountered or become aware of alleged ADA violations that deter his patronage of or otherwise interfere with his access to a place of public accommodation, he has already suffered an injury in fact traceable to the defendant's conduct and capable of being redressed by the courts, and so he possesses standing under Article III to bring his claim for injunctive relief forward.Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1042 n.5 (9th Cir. 2008).
In his proposed FAC, Plaintiff alleges that he encountered at least eight barriers to access at Valley Brew before the renovation, and he alleges that some barriers remain post-renovation. See Proposed FAC ¶¶ 9-16, 18-21. Plaintiff further alleges as follows:
The plaintiff frequents the Stockton area on a constant and ongoing basis. He has shopped, stayed, eaten and otherwise visited Stockton on scores and scores of occasions over the last many years and will continue to do so in the future. He ate at the Valley Brewing Company in April of 2014 and encountered the barriers. He ate there again in July of 2014 and encountered the barriers. He has been deterred on other occasions since July of 2014 from attempting patronage because of his knowledge of the barriers.Proposed FAC ¶¶ 22-23. For some of the barriers, Plaintiff also provides a brief description of how the barrier affected him because of his disability. For example, he alleges that the improperly configured toilet stall was "too small for wheelchair users because the toilet stall door swung into the stall itself and a wheelchair does not have sufficient maneuvering space to close the door while in the stall." Proposed FAC ¶ 11. In light of these allegations, the Court finds that Plaintiff's proposed amendments are not futile. Sweaney, 119 F.3d at 1393 (futility is found where "no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense."); see, e.g., Oliver v. Ralphs Grocery Co., 654 F.3d 903, 907-08 (9th Cir. 2011) (finding plaintiff suffered an injury in fact, where undisputed facts demonstrated plaintiff "had visited the [store] in question at least ten times between October 2007 and August 2008, and that on one of these visits, he discovered that it was difficult to use the accessible stall in the men's restroom").
In encountering and dealing with the lack of accessible facilities, the plaintiff experienced difficulty and discomfort.
III. ORDER
For the reasons set forth above, the Court GRANTS Plaintiff's Motion for Leave to File a FAC. The Proposed FAC (Doc. #36-2) shall be deemed filed as of the date of this Order. Defendants' responsive pleading shall be filed within twenty days of the date of this Order.
As a final matter, Plaintiff's reply is two pages longer than the page limit allowed by the PTSO. See PTSO 2:22-24. In accordance with the PTSO, Plaintiff's counsel, Center for Disability Access, is sanctioned in the amount of $100. Id. at 3:1-3 ("A violation of this Order will result in monetary sanctions being imposed against counsel in the amount of $50.00 per page . . . .") Plaintiff's counsel is to pay this amount within five days of the date of this Order.
IT IS SO ORDERED. Dated: May 9, 2016
/s/ _________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE