Huemer v. Santa Cruz County Animal Shelter Foundation

Opinion

1 2 5 6 ARIANA HUEMER, et al., Case No. 21-cv-07372-SVK

7 Plaintiffs, ORDER ON PLAINTIFFS’ MOTION 8 v. FOR LEAVE TO FILE THIRD AMENDED COMPLAINT SHELTER FOUNDATION, et al., Re: Dkt. No. 50 10 Defendants. 11 12 Before the Court is the motion of Plaintiffs Ariana Huemer and Eeyore’s Hen Harbor for 13 leave to file a Third Amended Complaint. Dkt. 50. The Court finds this matter suitable for 14 determination without oral argument. Civ. L.R. 7-1(b). For the reasons that follow, Plaintiffs’ 15 motion is GRANTED IN PART AND DENIED IN PART. 16 Plaintiffs seek to amend the complaint because they have obtained the identities of three 17 veterinarians who were originally named as Doe defendants, all of whom Plaintiffs allege to be 18 “contracted veterinarian employee[s]” of Defendant Santa Cruz Animal Shelter. Id.; see also 19 Dkt. 50-1 ¶¶ 10-12. The existing Defendants have responded to the motion for leave to amend by 20 stating that they oppose Plaintiffs’ inclusion of a Monell claim that has been dismissed by the 21 Court, but are otherwise neutral and “leave it for the Court’s determination whether Plaintiffs 22 satisfied FRCP 15(a)(2).” Dkt. 55. 23 In the Court’s Order on Defendants’ motion to dismiss the Second Amended Complaint, 24 the Court dismissed Plaintiffs’ Monell claim with prejudice and without leave to amend. Dkt. 40. 25 In their response to the present motion, Defendants assert that Plaintiffs seek to include the 26 dismissed Monell claim in the proposed Third Amended Complaint only “for any future appeal.” 27 Dkt. 55. Plaintiffs did not file a reply on the present motion or otherwise dispute Defendants’ 1 Although the Court finds it appropriate under Rule 15(a)(2) to allow Plaintiffs to amend 2 || the complaint to add the identity of Doe defendants, inclusion of the dismissed Monell claim is 3 || neither necessary nor appropriate. The Ninth Circuit does not require a plaintiff to replead “claims 4 || dismissed with prejudice and without leave to amend” in order to preserve them for appeal. Lacey 5 v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012). 6 Accordingly, the Court GRANTS Plaintiffs’ motion to file a Third Amended Complaint 7 insofar as it seeks to include the identities of Defendants previously named as Doe Defendants and 8 DENIES Plaintiffs’ motion insofar as it seeks to include the now-dismissed Monell claim in the 9 || Third Amended Complaint. The Court further ORDERS as follows: 10 1. Plaintiffs must file a Third Amended Complaint that conforms to this Order within 11 7 days of the date of the Order. 12 2. The existing Defendants must serve a response to the Third Amended Complaint 5 13 within 14 days of filing. 14 3. Plaintiffs must serve the Third Amended Complaint on the newly-named 3 15 Defendants within 14 days of filing the Third Amended Complaint, and those a 16 Defendants must file a response to the Third Amended Complaint within 14 days 3 17 of service. 19 Dated: March 28, 2023 20 21 Suse val SUSAN VAN KEULEN United States Magistrate Judge 23 24 25 26 27 28