Avila v. City of Visalia, et al., No. 1:2009cv00847 - Document 30 (E.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER GRANTING UNOPPSED MOTION TO DISMISS 25 , Striking First Amended Complaint 27 , and Granting Plainitff Leave to Re-File First Amended Complaint, signed by Judge Oliver W. Wanger on 8/5/2010. (Gaumnitz, R)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 10 ARLEEN AVILA, Plaintiff, 11 12 13 1:09-cv-00847 OWW SMS MEMORANDUM DECISION AND ORDER GRANTING UNOPPOSED MOTION TO DISMISS (DOC. 25), STRIKING FIRST AMENDED COMPLAINT (DOC. 27) AND GRANTING PLAINTIFF LEAVE TO RE-FILE FIRST AMENDED COMPLAINT v. CITY OF VISALIIA, et al., 14 Defendants. 15 16 On or about May 11, 2007, Plaintiff was arrested for driving 17 under the influence of an alcohol or drug. 18 2009 Complaint against the City of Visalia and three of its 19 20 21 22 Plaintiff s May 11, police officers alleges that Defendants erroneously determined that she had been driving her automobile under the influence and failed to consider information then and there provided to them 23 that plaintiff was not under the influence of alcohol or a drug, 24 but was rather suffering from the debilitating effect of her 25 disability. 26 Plaintiff explains that she suffers from Parkinson s Disease. 27 Id. at ¶12. Doc. 1 at ¶8. Elsewhere in the complaint, During the course of Defendants efforts to arrest 28 1 1 Plaintiff, Plaintiff alleges that she was physically and 2 verbally assault[ed] repeatedly, id. at ¶9, and was physically 3 restrained and removed to a hospital against her will and over 4 her objection, id. at ¶10. 5 6 7 Plaintiff s initial complaint alleges: (1) a cause of action under 42 U.S.C. § 1983 ( Section 1983 ) based upon a violation of 8 her Fourth Amendment rights; (2) discrimination under the 9 Americans with Disabilities Act ( ADA ); (3) retaliation; (4) 10 false arrest and imprisonment; and (5) and intentional infliction 11 of emotional distress. 12 13 14 15 Doc. 1. On June 14, 2010, Defendants moved to dismiss the Section 1983 and state causes of action. As to the Section 1983 claim, Defendants argue that the Complaint fails to allege any facts 16 that would lead one to conclude any Defendant did anything 17 wrong. 18 because the Complaint is silent as to any policy or 19 custom...that would [support] Plaintiff s claim that she has been 20 harmed by the City[,] Plaintiff [] failed to plead Monell 21 Doc. 25-1 at 3. In addition, Defendants argued that liability against the City.... Id. at 4-5. Defendants also 22 23 24 25 26 27 28 argue that the Complaint fails to adequately plead causes of action for false imprisonment and intentional infliction of emotional distress. Id. at 5-6 On July 20, 2010, Plaintiff filed a statement of nonopposition along with a proposed first amended complaint. 2 Docs. 1 27 & 28. 2 to provide: 3 4 Federal Rule of Civil Procedure 15 was recently amended A party may amend its pleading once as a matter of course within: 5 (A) 21 days after serving it; or 6 (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. 7 8 9 10 11 In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. 12 should freely give leave when justice so requires. 13 The court Fed. R. Civ. Pro. 15(a)(2). 14 By order of the Supreme Court dated March 26, 2009, the 15 amendments took effect December 1, 2009 and should govern in all 16 17 proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending. Order, 2009 U.S. 18 19 Order 17 (Mar. 26, 2009)(emphasis added). This proceeding, which 20 was filed on May 11, 2009, was pending as of December 1, 2009. 21 There is no apparent basis for a finding that application of the 22 new Rule 15 to a motion filed after December 1, 2009 would be 23 unjust or impracticable. 24 file her amended complaint within 21 days after service of 25 26 27 28 Accordingly, Plaintiff was required to Defendants June 14, 2010 motion to dismiss. Plaintiff did not lodge her proposed amended complaint until July 20, 2010, more than 30 days after Defendants motion. 3 1 Plaintiff has neither filed a stipulation indicating the 2 opposing party s consent to amendment nor has she filed a motion 3 for leave to amend. 4 It is therefore improper to allow the first amended complaint to automatically moot Defendants motion to 5 6 7 dismiss. The First Amended Complaint, Doc. 27, is STRICKEN. However, given Plaintiffs non-opposition to Defendants motion 8 to dismiss, that motion is GRANTED WITH LEAVE TO AMEND. 9 Plaintiff may re-file her proposed first amended complaint. 10 11 12 13 14 SO ORDERED Dated: August 5, 2010 /s/ Oliver W. Wanger Oliver W. Wanger United States District Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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