Dang v. Pontier

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DANG d/b/a LAW OFFICE OF Case No.: 19cv1519 GPC(AHG) JOSEPH DANG, an individual`, 12 ORDER RE PONTIER’S PROPOSED Plaintiff, 13 AMENDED COUNTERCLAIM v. 14 DAVID PONTIER, an individual; 15 TEOCO Corporation Group Benefit Plan, 16 a self-funded group health plan; TEOCO Corporation, a Delaware Corporation; 17 UMR Inc., a Delaware Corporation; Glenn 18 C. Nusbaum, an individual; Paul E. Kim, MD Inc., a California corporation; Kevin 19 Yoo, an individual, 20 Defendants. 21

22 The Court is in receipt of Pontier’s proposed amended counterclaim. In a prior 23 order, the Court granted Pontier’s motion for leave to file an amended counterclaim to 24 add JP Morgan Chase Bank, Farmers Insurance, Inc. and GEICO Insurance, Inc. (Dkt. 25 No. 126.) On October 29, 2020, Pontier filed a notice to withdraw his request to join 26 27 28 1 those parties because he had filed a separate action against them. (Dkt. No. 132.) The 2 proposed amended counterclaim provides a detailed factual history of Pontier’s 3 circumstance; however, it does not allege who the defendant is or what causes of action 4 are alleged. The Court notes that there is heading for “breach of contract/fraud” which 5 the Court can liberally construe as causes of action. 6 However, the Court notes that Pontier’s operative counterclaim alleges claims for 7 conversion, fraud, breach of contract, and legal malpractice against Dang. (Dkt. No. 9, 8 28.) In the prior order, the Court specifically stated, 9 Pontier’s amended counterclaim must be complete in itself without reference to the original pleading. See S.D. Cal. Civ. Local R. 15.1. Counter- 10 Defendants not named and any claim not re-alleged in the amended 11 counterclaim will be considered waived. See id.; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 12 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 13 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be “considered 14 waived if not repled.”). 15 16 (Dkt. No. 126 at 7.) Therefore, by filing the proposed amended counterclaim, Pontier 17 will be waiving his claims for conversion, and legal malpractice; however, it is not clear 18 whether Pontier, proceeding pro se, intended to waive these claims. Accordingly, the 19 Court rejects his proposed counterclaim and DIRECTS Pontier to resubmit an amended 20 counterclaim with all claims he seeks to allege against the counterdefendant which 21 complies with Federal Rule of Civil Procedure 8. Pontier is granted leave to re-file his 22 / / / 23 / / / 24 / / / 25 / / / 26

27 1 In his filing, Pontier did not indicate which court he filed his new complaint but it appears that his 28 1 ||amended counterclaim to the Court on or before November 20 , 2020. 2 IT IS SO ORDERED. 3 Dated: November 5, 2020 2 aaho Ok 4 Hon. Gonzalo P. Curiel 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28