Ellison v. Smith's Food & Drug Centers, Inc.

• Court: District Court, D. Nevada
• Decided: March 24, 2022
• Docket: 3:21-cv-00211
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JAMIE LEE ELLISON, Case No. 3:21-cv-00211-MMD-CLB

7 Plaintiff, ORDER v. 8 SMITH’S FOOD & DRUG CENTERS, 9 INC., et al.,

10 Defendants. 11 12 I. SUMMARY 13 Plaintiff Jamie Lee Ellison sued Defendants Smith’s Food & Drug Centers, Inc. 14 (“Smith”) and Pipestone Property Services, LLC (“Pipestone”) for alleged negligence, for 15 injuries stemming from a slip and fall on ice and snow in the parking lot of a grocery store. 16 (ECF No. 20 (“FAC”).) Before the Court are: (1) Pipestone’s motion to dismiss Ellison’s 17 FAC (ECF No. 24 (“Dismissal Motion”));1 and (2) Ellison’s motion for leave to file a 18 proposed Second Amended Complaint (“SAC”) (ECF No. 37 (“Motion”)).2 Both because 19 motions seeking leave to amend should be liberally granted, and Ellison’s proposed 20 amendments in her proposed SAC are not futile, the Court will grant Ellison’s Motion. The 21 Court will accordingly deny the Dismissal Motion as moot because it seeks to dismiss a 22 complaint that is no longer the operative complaint following this order. 23 II. BACKGROUND 24 Ellison filed this case in Nevada state court. (ECF No. 1-1.) Smith removed. (ECF 25 No. 1.) Ellison subsequently filed a motion for leave to file the FAC primarily to name 26

27 1Ellison filed a response (ECF No. 26) and Pipestone filed a reply (ECF No. 27). 1 Pipestone as a defendant, explaining that discovery had revealed Pipestone may have 2 been responsible for the snow removal at the pertinent grocery store and accordingly 3 responsible for Ellison’s injuries. (ECF No. 15.) United States Magistrate Judge Carla L. 4 Baldwin granted that motion for leave to amend. (ECF No. 19.) 5 The FAC is therefore the currently operative complaint. (ECF No. 20.) Pipestone’s 6 pending Dismissal Motion moves to dismiss the FAC, arguing that the allegations in the 7 FAC against Pipestone are insufficiently specific to state a claim.3 (ECF No. 24.) 8 However, Ellison now seeks leave to file her proposed SAC. Ellison explains in the 9 Motion that additional discovery has revealed that Command7 Property Services, LLC, a 10 Utah limited liability company (“Command7”) and Premium Lawn & Landscapes, Inc., a 11 Nevada domestic corporation (“Premium”)—additional subcontractors or vendors of 12 Smith’s subcontractor or vendor Pipestone—may have been responsible for snow 13 removal at the applicable grocery store and thus at least partially responsible for Ellison’s 14 injuries. (ECF No. 37 at 1-3.) Ellison accordingly seeks leave to amend to add Command7 15 and Premium as defendants, along with correcting the name of Smith and making some 16 additional changes.4 (Id. at 1.) 17 Meanwhile, Pipestone filed a motion to stay discovery. (ECF No. 36.) Judge 18 Baldwin denied that motion. (ECF No. 44.) 19 III. LEGAL STANDARD 20 Rule 15 of the Federal Rules of Civil Procedure allows amendment only with leave 21 of court once responsive pleadings have been filed and in the absence of the adverse 22 party’s written consent. See Fed. R. Civ. P. 15(a). The Court has discretion to grant leave 23 3This case was reassigned to the Court shortly after Pipestone filed its Dismissal 24 Motion (ECF No. 29), and more specifically after United States District Judge Howard D. McKibben recused (ECF No. 28). 25

26 4Comparing the proposed SAC to the FAC, Ellison appears to flesh out her negligence theory against Pipestone in the SAC and adds similar allegations against 27 Command7 and Premium. (Compare ECF No. 20 with ECF No. 37-1.) The gist of the negligence theory against all defendants, existing or proposed, is that at least one of them 28 had a duty to keep the handicapped parking spot where Ellison slipped and fell free of ice 1 and should freely do so “when justice so requires.” Allen v. City of Beverly Hills, 911 F.2d 2 367, 373 (9th Cir. 1990) (quoting Fed. R. Civ. P. 15(a)). “In exercising its discretion, ‘a 3 court must be guided by the underlying purpose of Rule 15—to facilitate a decision on the 4 merits rather than on the pleadings or technicalities.’” DCD Programs, Ltd. v. Leighton, 5 833 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th 6 Cir. 1981)). Nonetheless, the Court may deny leave to amend if: (1) it will cause undue 7 delay; (2) it will cause undue prejudice to the opposing party; (3) the request is made in 8 bad faith; (4) the party has repeatedly failed to cure deficiencies; or (5) the amendment 9 would be futile. See Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 10 2008). 11 IV. DISCUSSSION 12 Ellison asserts the following arguments in support of amendment: the Motion is 13 not brought in bad faith, she did not unduly delay in filing it from the time she learned of 14 the involvement of Command7 and Premium, Smith and Pipestone would not be 15 prejudiced by the proposed amendments because they have known of Command7 and 16 Premium’s involvement for some time now but did not disclose it, the proposed SAC does 17 not alter the legal theories pleaded against Smith and Pipestone, the proposed 18 amendments are not futile, and while Ellison previously obtained leave to amend to add 19 claims against Pipestone, she would have moved to add claims against Command7 and 20 Premium earlier if she had known of their potential involvement. (ECF No. 37 at 3-5.) 21 Smith counters that Ellison unduly delayed in filing suit, though admits Ellison filed suit 22 before the statute of limitations expired (ECF No. 41 at 2-3), and otherwise argues that 23 amendment would be futile if the Court granted the Dismissal Motion or permitted Ellison 24 to add Command7 and Premium as parties to this case and then later dismissed them 25 (id. at 3-4).5 Pipestone counters that it would be prejudiced were the Court to grant the 26 5Smith then proceeds to respond to Ellison’s counsel’s allegations about Smith’s 27 counsel’s litigation conduct even after stating the disputes over litigation conduct are irrelevant to the standards governing whether the Court should grant the Motion. (ECF 28 No. 41 at 4-6.) Judge Baldwin recently reminded “counsel for all parties, personal attacks 1 Motion because there would be limited time to conduct discovery involving the new parties 2 and amendment would be futile because Ellison did not know about the contracts 3 between Smith, Pipestone, Command7, and Premium when she slipped and fell, and it 4 had not snowed enough at the time of Ellison’s fall for anyone to have been required to 5 remove snow and ice under the various contracts. (ECF No. 42 at 3-4.) The Court agrees 6 with Ellison in pertinent part. 7 Discovering who was actually responsible for clearing the ice and snow that was 8 allegedly not cleared and allegedly caused Ellison to slip and fall is a clear example of 9 attempting to get the merits of a case. Thus, granting the Motion aligns with the 10 “underlying purpose of Rule 15—to facilitate decision on the merits[.]” DCD Programs, 11 833 F.2d at 186. Moreover, the required “liberality in granting leave to amend is not 12 dependent on whether the amendment will add causes of action or parties.” Id. As to 13 undue delay, neither Smith nor Pipestone dispute Ellison’s representation that she moved 14 for leave to amend only about two weeks after she learned of the potential involvement 15 of Command7 and Premium through discovery. (ECF No. 37 at 3 & 3 n.2; see also ECF 16 Nos. 41, 42 (declining to dispute this).) In addition, no party argues Ellison brought the 17 Motion in bad faith. And while Judge Baldwin previously granted Ellison leave to amend, 18 it is logical that Ellison would seek leave to amend again after learning of the involvement 19 and potential responsibility of more parties. Indeed, the fact that Judge Baldwin already 20 granted leave to amend weighs in favor of granting the Motion because Ellison again 21 seeks leave to amend for basically the same reason Judge Baldwin already validated in 22 granting Ellison’s first motion to amend. Thus, the Court agrees the Motion should be 23 granted for the reasons Ellison provided in her Motion. 24 Defendants make three arguments to the contrary, but the Court finds none of 25 them persuasive. The Court addresses these arguments below. 26 /// 27

28 and the parties should refrain from such conduct in future filings with the Court.” (ECF No. 1 Smith argues undue delay. (ECF No. 41 at 2-3.) However, as Ellison points out in 2 reply (ECF No. 45 at 7), Smith is arguing about irrelevant delay in filing suit, not the 3 pertinent delay under the standards governing the Court’s review of the Motion—the time 4 between when Ellison learned of potential grounds for amendment and when she filed 5 her Motion. See, e.g., Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 6 2014) (finding no undue delay based on time elapsed between when the plaintiffs learned 7 new information through discovery and when they moved for leave to amend). As noted, 8 there is no dispute that only about two weeks elapsed between the time Ellison learned 9 about the potential involvement of Command7 and Premium and when she filed her 10 Motion. She did not unduly delay. 11 Pipestone argues prejudice in that there would not be much time for discovery if 12 Command7 and Premium are added as parties. (ECF No. 42 at 3.) But discovery and 13 other deadlines can be extended for good cause and any prejudice caused by potential 14 delay in this case is outweighed by the value of having all parties who might be 15 responsible for Ellison’s alleged injuries involved in this case. Moreover, any delay in 16 Ellison’s discovery of the involvement of Command7 and Premium is fairly attributable to 17 Pipestone in any event because Pipestone is the entity that had relationships with 18 Command7 and Premium. In addition, Ellison disputes in her reply how much delay will 19 actually occur if leave to amend is granted. (ECF No. 45 at 3-4.) On this record, the Court 20 cannot say any discovery delays will be substantial. The prejudice factor does not weigh 21 in favor of denying the Motion. 22 Both Smith and Pipestone finally argue futility of amendment. (ECF Nos. 41 at 3- 23 4, 42 at 3-4.) However, their futility arguments are unpersuasive. Smith specifically argues 24 amendment would be futile if the Court granted the Dismissal Motion or later dismissed 25 Command7 and Premium after permitting Ellison to name them as defendants through 26 amendment. (ECF No. 41 at 3-4.) The Court disagrees. Granting the Motion would—and 27 will—moot the Dismissal Motion, but not the other way around. Indeed, the Court could 28 grant the Dismissal Motion but still find leave to amend appropriate. And Smith’s other 1 argument depends on speculative future events that may or may not occur—unhelpful for 2 purposes of resolving the Motion. 3 Pipestone argues futility because Ellison was not aware of any contracts between 4 the existing and potential defendants before recently discovering them. (ECF No. 42 at 5 3-4.) Pipestone proffers no caselaw to support this argument—probably because none 6 exists. (Id.) As Ellison persuasively replies (ECF No. 45 at 4-6), Ellison’s knowledge about 7 the contractual relationships between the existing and proposed defendants is simply 8 irrelevant to her negligence claim—people are often injured by unknown individuals and 9 entities. If any of the proposed or existing defendants injured Ellison, they could be liable 10 to her for negligence if Ellison can prove the elements of her claim against each of them. 11 Further, Ellison’s argument relies on applicable Nevada caselaw that the Court agrees— 12 following its review of those cases—supports Ellison’s argument that she has a legally 13 viable negligence claim against the existing and proposed defendants. (See id.) And at 14 this stage, all the Court can—or must—say is that the allegations against the existing and 15 proposed defendants in Ellison’s proposed SAC (ECF No. 37-1) are sufficient to state a 16 negligence claim against each of them. 17 Pipestone finally argues amendment would be futile because of an email from 18 Smith’s insurance claims company’s representative stating that it did not snow enough 19 on the day of Ellison’s fall to require any entity to remove any snow. (ECF No. 42 at 4.) 20 This argument is inappropriate and unpersuasive because it asks the Court to definitively 21 resolve a disputed issue of fact instead of addressing the proposed allegations in the 22 proposed SAC. Indeed, Pipestone’s argument does not even discuss Ellison’s proposed 23 allegations in the proposed SAC, much less assume the plausible allegations in the SAC 24 are true and argue futility under the appropriate standard that governs motions to dismiss 25 for failure to state a claim. See Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty., 708 26 F.3d 1109, 1118 (9th Cir. 2013) (stating that the plaintiff “may be able to amend its 27 complaint to state a claim that will survive a motion to dismiss, and so denial of leave to 28 amend on the ground of futility is improper.”) (footnote omitted); see also Ashcroft v. Iqbal, 1|| 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must contain 2|| sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 3|| face.”’) (citation omitted). And as noted, the Court finds Ellison’s proposed allegations in 4|| her proposed SAC (ECF No. 37-1) sufficient to state a negligence claim against each 5|| existing and proposed defendant.® 6 In sum, the Court will grant the Motion. V. CONCLUSION 8 The Court notes that the parties made several arguments and cited to several 9|| cases not discussed above. The Court has reviewed these arguments and cases and 10|| determines that they do not warrant discussion as they do not affect the outcome of the || motions before the Court. 12 It is therefore ordered that Ellison’s motion for leave to file her proposed SAC (ECF No. 37) is granted. 14 It is further ordered that Pipestone’s motion to dismiss (ECF No. 24) is denied as moot. 16 DATED THIS 24" Day of March 2022. 17 18 MIRANDA M. DU 19 CHIEF UNITED STATES DISTRICT JUDGE

20 21 22 23 — SSS 25 SEven if the Court were to consider the email Pipestone points to—and the Court does not for purposes of resolving the Motion—it does not definitely establish that none 26|| of the existing or proposed defendants had a duty to clear the snow and ice that Ellison allegedly slipped on. As Ellison argues in reply (ECF No. 45 at 6), other evidence □□ proffered by Ellison suggests that one or more of the defendants undertook a duty to keep the parking lot slip-free. Thus, at most, there appears to be a dispute of fact about the 28|| various defendants’ duties to keep the parking lot free of ice and snow that is not resolved by the email Pipestone points to.