1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD ANGELUCCI, Case No.: 3:20-cv-00435-AJB-JLB Plaintiff, 12 ORDER: v. 13 DAVID PEKOSKE,1 Acting Secretary, (1) GRANTING IN PART 14 United States Department of Homeland DEFENDANT’S MOTION TO STRIKE 15 Security THE AMENDED COMPLAINT (Doc. No. 10), 16 Defendant. 17 (2) GRANTING PLAINTIFF’S REQUEST FOR LEAVE TO AMEND, 18 and 19 (3) DENYING AS MOOT 20 DEFENDANT’S MOTION TO 21 DISMISS THE COMPLAINT (Doc. No. 4) 22 23
24 25 26 27 1 On January 20, 2021, David Pekoske replaced Chad Wolf as Acting Secretary of the United States Department of Homeland Security. Pursuant to Federal Rule of Civil Procedure 25(d), Acting Secretary 28 1 Before the Court is Defendant Acting Secretary David Pekoske’s motion to dismiss 2 Plaintiff Richard Angelucci’s complaint (Doc. No. 4), as well as Defendant’s subsequent 3 motion to strike Plaintiff’s amended complaint (Doc. No. 10). For the reasons set forth, the 4 Court GRANTS IN PART Defendant’s motion to strike, GRANTS Plaintiff leave to 5 amend, and DENIES AS MOOT Defendant’s motion to dismiss. 6 I. BACKGROUND 7 On March 6, 2020, Plaintiff filed a complaint asserting that Defendant subjected him 8 to unlawful employment discrimination, in violation of Title VII of the Civil Rights Act of 9 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991. (Doc. No. 1 10 at 2.)2 On June 26, 2020, Defendant filed a motion to dismiss Plaintiff’s complaint for 11 failure to state a claim. (Doc. No. 4.) Instead of responding to Defendant’s motion, Plaintiff 12 filed, on July 17, 2020, an amended complaint. (Doc. No. 7.) 13 On July 20, 2020, the Clerk’s Office notified Plaintiff that his amended complaint 14 was missing counsel’s signature and instructed him to withdraw and refile a corrected 15 version. (Doc. No. 14-1 at 2.) The next day, Plaintiff withdrew and refiled the amended 16 complaint. (Doc. Nos. 8, 9.) Defendant thereafter moved to strike it—arguing that because 17 the refiled amended complaint (“FAC”) does not merely cure the pro forma error and 18 includes substantive additions, the FAC is untimely and unauthorized under Federal Rule 19 of Civil Procedure 15(a). (Doc. No. 10 at 2 n.2.) 20 Plaintiff concedes that he “withdrew the amended complaint and then he corrected 21 the error and added additional facts to his amended complaint.” (Doc. No. 12 at 5.) Plaintiff 22 asserts that he believed his filing was within his right to amend as a matter of course. He 23 requests that if his understanding is in error, that the Court either deem his FAC valid and 24 strike the additional facts, or grant him leave to amend to include the additional facts. 25 26 27 28 1 II. LEGAL STANDARD 2 Federal Rule of Civil Procedure 12(f), allows the Court, on its own or by motion, to 3 “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, 4 or scandalous matter.” Fed. R. Civ. P. 12(f). The purpose of Rule 12(f) is to “avoid the 5 expenditure of time and money that must arise from litigating spurious issues by dispensing 6 with those issues prior to trial[.]” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 7 (9th Cir. 1983). 8 Federal Rule of Civil Procedure 15(a) provides: 9 (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: 10 (A) 21 days after serving it, or 11 (B) If the pleading is one to which a responsive pleading is required, 21 12 days after service of a responsive pleading or 21 days after service of a motion under 12(b), (e), or (f), whichever is earlier. 13 (2) Other Amendments. In all other cases, a party may amend its pleading 14 only with the opposing party's written consent or the court's leave. The court 15 should freely give leave when justice so requires. 16 According to the Ninth Circuit, “[f]ive factors are taken into account to assess the 17 propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing 18 party, futility of the amendment, and whether the plaintiff has previously amended the 19 complaint.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) 20 (quoting Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)). These factors, however, 21 are not weighted equally. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 22 (9th Cir. 2003) (per curiam). “Absent prejudice, or a strong showing” of the remaining 23 factors, there exists a “presumption under Rule 15(a) in favor of granting leave to amend.” 24 Id. (emphasis in original). 25 III. DISCUSSION 26 Turning first to the issue of whether Plaintiff’s FAC, in its entirety, can be construed 27 to have been properly filed as a matter of course, the Court finds that the answer is no. 28 Pursuant to Rule 15(a), Plaintiff must have filed the amended complaint 21 days after 1 Defendant’s service of the motion to dismiss on June 26, 2020. (Doc. No. 4.) As such, 2 Plaintiff’s filing was due on July 17, 2020. And although he did file an amended complaint 3 on that day, he subsequently withdrew it on July 21, 2021. (Doc. No. 8.) 4 The Court acknowledges that the Clerk’s Office instructed Plaintiff to withdraw and 5 refile the amended complaint due to a signature error. However, when Plaintiff filed the 6 FAC, it contained more than a simple signature correction. In Plaintiff’s words, he “added 7 additional facts to his amended complaint.” (Doc. No. 12 at 5.) Because the FAC contains 8 substantive factual matter not previously asserted in the earlier timely filing, the Court does 9 not find that the entirety of the FAC is properly filed as a matter of course. Rather, the 10 Court construes the FAC as a proper “matter of course” filing only insofar as it does not 11 include the additional untimely substantive material. Accordingly, the Court will GRANT 12 IN PART Defendant’s motion to strike—striking only the offending portions of the FAC. 13 (Doc. No. 10.) Relatedly, in light of Plaintiff’s filing of the FAC, the Court DENIES AS 14 MOOT Defendant’s motion to dismiss the original complaint. (Doc. No. 4.) 15 Second, the Court turns to Plaintiff’s request for leave to amend the FAC to include 16 additional facts. (Doc. No. 12 at 5.) Here, the weight of the relevant factors does not 17 overcome the presumption in favor of granting leave to amend. See Eminence Capital, 316 18 F.3d at 1052. Specifically, there is no allegation that Plaintiff acted in bad faith. Moreover, 19 the case is in the early stages of litigation, and thus, an amendment would not cause undue 20 delay or prejudice to Defendant. Further, as the amendment seeks to address issues raised 21 in Defendant’s motion to dismiss, the Court does not find that amendment would be futile 22 in this case. And although Plaintiff previously amended the complaint, this factor alone is 23 insufficient to overcome the presumption in favor of the amendment. See id.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD ANGELUCCI, Case No.: 3:20-cv-00435-AJB-JLB Plaintiff, 12 ORDER: v. 13 DAVID PEKOSKE,1 Acting Secretary, (1) GRANTING IN PART 14 United States Department of Homeland DEFENDANT’S MOTION TO STRIKE 15 Security THE AMENDED COMPLAINT (Doc. No. 10), 16 Defendant. 17 (2) GRANTING PLAINTIFF’S REQUEST FOR LEAVE TO AMEND, 18 and 19 (3) DENYING AS MOOT 20 DEFENDANT’S MOTION TO 21 DISMISS THE COMPLAINT (Doc. No. 4) 22 23
24 25 26 27 1 On January 20, 2021, David Pekoske replaced Chad Wolf as Acting Secretary of the United States Department of Homeland Security. Pursuant to Federal Rule of Civil Procedure 25(d), Acting Secretary 28 1 Before the Court is Defendant Acting Secretary David Pekoske’s motion to dismiss 2 Plaintiff Richard Angelucci’s complaint (Doc. No. 4), as well as Defendant’s subsequent 3 motion to strike Plaintiff’s amended complaint (Doc. No. 10). For the reasons set forth, the 4 Court GRANTS IN PART Defendant’s motion to strike, GRANTS Plaintiff leave to 5 amend, and DENIES AS MOOT Defendant’s motion to dismiss. 6 I. BACKGROUND 7 On March 6, 2020, Plaintiff filed a complaint asserting that Defendant subjected him 8 to unlawful employment discrimination, in violation of Title VII of the Civil Rights Act of 9 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991. (Doc. No. 1 10 at 2.)2 On June 26, 2020, Defendant filed a motion to dismiss Plaintiff’s complaint for 11 failure to state a claim. (Doc. No. 4.) Instead of responding to Defendant’s motion, Plaintiff 12 filed, on July 17, 2020, an amended complaint. (Doc. No. 7.) 13 On July 20, 2020, the Clerk’s Office notified Plaintiff that his amended complaint 14 was missing counsel’s signature and instructed him to withdraw and refile a corrected 15 version. (Doc. No. 14-1 at 2.) The next day, Plaintiff withdrew and refiled the amended 16 complaint. (Doc. Nos. 8, 9.) Defendant thereafter moved to strike it—arguing that because 17 the refiled amended complaint (“FAC”) does not merely cure the pro forma error and 18 includes substantive additions, the FAC is untimely and unauthorized under Federal Rule 19 of Civil Procedure 15(a). (Doc. No. 10 at 2 n.2.) 20 Plaintiff concedes that he “withdrew the amended complaint and then he corrected 21 the error and added additional facts to his amended complaint.” (Doc. No. 12 at 5.) Plaintiff 22 asserts that he believed his filing was within his right to amend as a matter of course. He 23 requests that if his understanding is in error, that the Court either deem his FAC valid and 24 strike the additional facts, or grant him leave to amend to include the additional facts. 25 26 27 28 1 II. LEGAL STANDARD 2 Federal Rule of Civil Procedure 12(f), allows the Court, on its own or by motion, to 3 “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, 4 or scandalous matter.” Fed. R. Civ. P. 12(f). The purpose of Rule 12(f) is to “avoid the 5 expenditure of time and money that must arise from litigating spurious issues by dispensing 6 with those issues prior to trial[.]” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 7 (9th Cir. 1983). 8 Federal Rule of Civil Procedure 15(a) provides: 9 (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: 10 (A) 21 days after serving it, or 11 (B) If the pleading is one to which a responsive pleading is required, 21 12 days after service of a responsive pleading or 21 days after service of a motion under 12(b), (e), or (f), whichever is earlier. 13 (2) Other Amendments. In all other cases, a party may amend its pleading 14 only with the opposing party's written consent or the court's leave. The court 15 should freely give leave when justice so requires. 16 According to the Ninth Circuit, “[f]ive factors are taken into account to assess the 17 propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing 18 party, futility of the amendment, and whether the plaintiff has previously amended the 19 complaint.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) 20 (quoting Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)). These factors, however, 21 are not weighted equally. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 22 (9th Cir. 2003) (per curiam). “Absent prejudice, or a strong showing” of the remaining 23 factors, there exists a “presumption under Rule 15(a) in favor of granting leave to amend.” 24 Id. (emphasis in original). 25 III. DISCUSSION 26 Turning first to the issue of whether Plaintiff’s FAC, in its entirety, can be construed 27 to have been properly filed as a matter of course, the Court finds that the answer is no. 28 Pursuant to Rule 15(a), Plaintiff must have filed the amended complaint 21 days after 1 Defendant’s service of the motion to dismiss on June 26, 2020. (Doc. No. 4.) As such, 2 Plaintiff’s filing was due on July 17, 2020. And although he did file an amended complaint 3 on that day, he subsequently withdrew it on July 21, 2021. (Doc. No. 8.) 4 The Court acknowledges that the Clerk’s Office instructed Plaintiff to withdraw and 5 refile the amended complaint due to a signature error. However, when Plaintiff filed the 6 FAC, it contained more than a simple signature correction. In Plaintiff’s words, he “added 7 additional facts to his amended complaint.” (Doc. No. 12 at 5.) Because the FAC contains 8 substantive factual matter not previously asserted in the earlier timely filing, the Court does 9 not find that the entirety of the FAC is properly filed as a matter of course. Rather, the 10 Court construes the FAC as a proper “matter of course” filing only insofar as it does not 11 include the additional untimely substantive material. Accordingly, the Court will GRANT 12 IN PART Defendant’s motion to strike—striking only the offending portions of the FAC. 13 (Doc. No. 10.) Relatedly, in light of Plaintiff’s filing of the FAC, the Court DENIES AS 14 MOOT Defendant’s motion to dismiss the original complaint. (Doc. No. 4.) 15 Second, the Court turns to Plaintiff’s request for leave to amend the FAC to include 16 additional facts. (Doc. No. 12 at 5.) Here, the weight of the relevant factors does not 17 overcome the presumption in favor of granting leave to amend. See Eminence Capital, 316 18 F.3d at 1052. Specifically, there is no allegation that Plaintiff acted in bad faith. Moreover, 19 the case is in the early stages of litigation, and thus, an amendment would not cause undue 20 delay or prejudice to Defendant. Further, as the amendment seeks to address issues raised 21 in Defendant’s motion to dismiss, the Court does not find that amendment would be futile 22 in this case. And although Plaintiff previously amended the complaint, this factor alone is 23 insufficient to overcome the presumption in favor of the amendment. See id. (“Absent 24 prejudice, or a strong showing of any of the remaining [] factors, there exists a presumption 25 under Rule 15(a) in favor of granting leave to amend.”) (emphasis in original). Thus, the 26 Court grants Plaintiff’s request for leave to amend the FAC. 27 28 1 IV. CONCLUSION 2 Accordingly, for the reasons stated: 3 1. The Court GRANTS IN PART Defendant’s motion to strike the FAC, striking 4 only those portions that were not included in the prior timely filing, with the 5 exception of counsel’s signature. (Doc. No. 10.) For ease of reference, Plaintiff 6 is DIRECTED to file, no later than February 3, 2021, the corrected version of 7 the FAC, and label it as a “Notice” event. 8 2. The Court DENIES AS MOOT Defendant’s motion to dismiss. (Doc. No. 4.) 9 3. The Court GRANTS Plaintiff’s request for leave to amend the FAC. Plaintiff 10 must file his second amended complaint no later than February 16, 2021. 11 Defendant must file a responsive pleading no later than March 3, 2021. 12 13 14 IT IS SO ORDERED. 15 16 Dated: February 1, 2021 © ¢ Hon. Anthony J. attaglia 18 United States District Judge 19 20 21 22 23 24 25 26 27 28