Stewart v. City of Carlsbad

• Court: District Court, S.D. California
• Decided: August 5, 2025
• Docket: 3:23-cv-00266
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LINDSEY STEWART, Case No.: 23cv0266-LL-MSB

12 Plaintiff, ORDER GRANTING IN PART 13 v. MOTION TO DISMISS WITH PREJUDICE, DISMISSING STATE- 14 CITY OF CARLSBAD, et al., LAW CLAIMS WITHOUT 15 Defendants. PREJUDICE, AND CLOSING CASE

16 [ECF No. 25] 17 18 Plaintiff Lindsey Stewart, acting pro se, sued Defendants City of Carlsbad, City of 19 Carlsbad Police Department, and Carlsbad Police Chief Williams (together, “Defendants”). 20 The First Amended Complaint is operative. ECF No. 23 (“FAC”). Defendants moved to 21 dismiss the FAC. ECF No. 25. The matter is fully briefed, and the Court deems it suitable 22 for determination on the papers and without oral argument pursuant to Civil Local Rule 23 7.1. For the reasons below, the Court GRANTS IN PART the Motion to Dismiss with 24 prejudice, DISMISSES the state-law claims without prejudice, and CLOSES the case. 25 I. BACKGROUND 26 The Court previously granted Defendants’ motion to dismiss Plaintiff’s complaint 27 for failure to state a claim upon which relief can be granted, but with leave for her to cure 28 it through amendment. ECF No. 10. Because Plaintiff failed to timely amend her complaint, 1 Defendants moved to dismiss the action pursuant to Federal Rule of Civil Procedure 41(b). 2 ECF No. 11. While that motion to dismiss the action was pending, Plaintiff appealed the 3 Court’s order dismissing the complaint to the Ninth Circuit. ECF No. 12. The Ninth Circuit 4 granted Defendants’ motion to dismiss that appeal for lack of jurisdiction, reasoning that 5 “a plaintiff, who has been given leave to amend, may not file a notice of appeal simply 6 because he does not choose to file an amended complaint. A further district court 7 determination must be obtained.” ECF No. 15 (quoting WMX Techs., Inc. v. Miller, 104 8 F.3d 1133, 1136 (9th Cir. 1997)). 9 On June 14, 2024, the Court spread the Ninth Circuit’s mandate. ECF No. 16. In 10 doing so, the Court denied Defendants’ motion to dismiss for failure to amend the 11 complaint and liberally granted Plaintiff a further opportunity to amend her complaint in 12 light of her “pro se status.” Id. at 2. However, it also warned that should she fail to timely 13 file an amended complaint by July 15, 2024, “the Court may enter a final order dismissing 14 this action without prejudice.” Id. 15 On July 15, 2024, Plaintiff moved for more time to file a FAC. ECF No. 19. Plaintiff 16 sought “to obtain Police Video Recordings from Defendants under a June 23, 2022 FOIA 17 to the City Clerk” to “lodge them with the First Amended Complaint” as “claims of Police 18 Misconduct.” Id. at 1. Defendants opposed, arguing that she was “apparently referencing a 19 California Public Records Act request that she submitted to the Carlsbad City Clerk, on 20 June 23, 2022.” ECF No. 20, at 2. Defendants further stated that “the request was acted 21 upon by the City, and all responsive records in the City’s possession were released, on July 22 21, 2022.” Id. Defendants included a link to the “City’s Public Records Portal, Request 23 Reference No. R002917-062322.” Id. 24 The Court liberally granted Plaintiff’s motion for more time to amend her complaint, 25 ordering that by November 7, 2024, she must file any FAC. ECF No. 22, at 4. On or about 26 that date, Plaintiff mailed her FAC to the Court, docketed on November 8, 2024, which the 27 Court treats as timely. FAC at 14. Unlike the original complaint, Plaintiff named Carlsbad 28 Police Chief Williams as a defendant in the FAC. Compare ECF No. 1 with FAC. 1 Arguably, Plaintiff sued Mr. Williams in both his individual and official capacity. 2 Plaintiff purports to have served Mr. Williams at the Carlsbad Police Department in May 3 2025, but she was already informed that he retired from the Department in April 2024. 4 ECF Nos. 32, 34, 40. This, Defendants argued, conveyed that Plaintiff meant to sue the 5 Police Chief in his or her official capacity. ECF No. 41. If so, the current Chief, Christie 6 Calderwood, “joins in the pending motion” to dismiss. Id. at 2. On the other hand, Plaintiff 7 noted “home address unknown at the time” in the summons, suggesting that she meant to 8 sue Mr. Williams himself. ECF No. 40. Plaintiff also named Mr. Williams throughout her 9 amended complaint. See FAC. 10 In either case, the end result is the same. If Plaintiff sued the Police Chief in his or 11 her official capacity, she joined in Defendants’ motion to dismiss, and the Court finds that 12 Plaintiff’s claims all rise or fall in the same way for each type of Defendant here—the City, 13 City Police Department, and City Police Department Chief. See Silva v. San Pablo Police 14 Dep’t, 805 F. App’x 482, 484 (9th Cir. 2020) (“The Ninth Circuit has squarely held that, 15 depending on state law, a local law enforcement agency can be a separately suable entity.”); 16 Thomas v. Cnty. of San Diego, No. 18-cv-0924-BTM-DEB, 2021 WL 8014326, at *5–6 17 (S.D. Cal. Jan. 28, 2021) (concluding that “SDPD is a proper party to this lawsuit” because 18 the “Ninth Circuit has held that police departments are ‘public entities’ as defined by 19 California law and thus may be sued in federal court”); Shaw v. Cal. Dep’t of Alcoholic 20 Beverage Control, 788 F.2d 600, 611 (9th Cir. 1986) (“As to the City, the policies of the 21 Police Department became its policies because the policies set by the Department and its 22 Chief may be fairly said to represent official City policy on police matters.” (quotation 23 marks and alterations omitted)). The Court finds the same even if Plaintiff sued Mr. 24 Williams in his personal capacity. Insofar as Plaintiff sued Mr. Williams in his personal 25 capacity, though, she has failed to timely serve him despite the Court’s orders to show 26 cause. See ECF Nos. 34, 35, 40, 42, 43; Fed. R. Civ. P. 4(m); CivLR 4.1(b). The Court thus 27 DISMISSES this action without prejudice against Mr. Williams in his personal capacity. 28 See Fed. R. Civ. P. 4(m) (“If a defendant is not served within 90 days after the complaint 1 is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the 2 action without prejudice against that defendant . . .”). 3 Plaintiff also purports to have served Carlsbad Police Officer Robinson #5570 as if 4 he were named a Doe in the FAC. ECF No. 38. However, Plaintiff did not include Doe 5 defendants in her FAC. See generally FAC. Plaintiff instead identified Officer Robinson 6 as one of many related, non-defendant parties. Id. at 2. The Court therefore disregards 7 docket entry number 38. Besides, even if Plaintiff successfully named and served Officer 8 Robinson as a defendant, the Court once again finds that the claims against him would rise 9 or fall in the same way as the actual Defendants. 10 On November 22, 2024, Defendants timely moved to dismiss Plaintiff’s FAC for 11 failure to state a claim upon which relief can be granted, noting a January 3, 2025 hearing 12 date. ECF No. 25. Plaintiff’s deadline to file a response to that motion to dismiss was thus 13 December 20, 2024. See CivLR 7.1(e)(2) (explaining that “each party opposing a motion” 14 must do so “not later than fourteen (14) calendar days prior to the noticed hearing”). 15 Plaintiff mailed her alleged response to Defendants’ motion to dismiss on December 23, 16 2024. See ECF No. 27, at 19; ECF No. 28, at 1. The Court did not receive this response 17 until December 26, 2024, which it docketed the following day. See id. 18 On December 27, 2024, the Court also issued an order to show cause stating that 19 Plaintiff did not timely oppose the motion to dismiss and gave her one week to show cause 20 “in writing why this matter should not be dismissed without prejudice for failure to 21 prosecute or to file a response to Defendants’ motion to dismiss.” ECF No. 26, at 2. 22 Plaintiff’s filing mailed on December 23 and docketed on December 27 arguably opposed 23 Defendants’ motion to dismiss, so the Court liberally treats it as an adequate response to 24 its order to show cause and does not strike it as untimely. See ECF Nos. 26–29. The Court 25 now turns to Defendants’ motion to dismiss Plaintiff’s FAC for failure to state a claim. 26 II. LEGAL STANDARD 27 Parties may move to dismiss a claim for “failure to state a claim upon which relief 28 may be granted.” Fed. R. Civ. P. 12(b)(6); see also Ileto v. Glock, Inc., 349 F.3d 1191, 1 1199–1200 (9th Cir. 2003) (requiring Rule 12(b)(6) to “be read in conjunction with Rule 2 8,” which requires a short and plain statement showing that the pleader is entitled to relief). 3 To survive this motion, a complaint must have “enough facts to state a claim to relief that 4 is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although 5 “allegations of material fact are taken as true and construed in the light most favorable to 6 the nonmoving party,” courts are not required to accept as true “allegations that contradict 7 matters properly subject to judicial notice” or “allegations that are merely conclusory, 8 unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State 9 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 10 This standard is ultimately a “liberal” one, especially when the action has been filed 11 “pro se.” See Estelle v. Gamble, 429 U.S. 97, 106–07 (1976). Still, even under a “liberal 12 interpretation,” courts “may not supply elements of the claim that were not initially pled.” 13 See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 14 III. DISCUSSION 15 The FAC has claims for Defendants’ alleged violations under: (1) the Fourteenth 16 Amendment’s Due Process Clause, including for failure to investigate citizen complaints 17 against police officers (and failure to do the same under Cal. Penal Code § 832.7(e)(1)); 18 (2) the duty of care, negligent infliction of emotional distress; (3) Title II of the Americans 19 with Disabilities Act, 42 U.S.C. § 12132; (4) the ADA and Rehabilitation Act for failure 20 to accommodate disabled senior citizens; and (5) the Housing Element Law, Cal. Gov. 21 Code § 65583.2(h). See FAC at 1. 22 A. Federal-Law Claims (Claims 1, 3, and 4) 23 1. The Fourteenth Amendment (Claim 1) 24 The Court first addresses Plaintiff’s federal-law claims, starting with claim one 25 under the Fourteenth Amendment. This “prohibits any state deprivation of life, liberty, or 26 property without due process of law.” Ingraham v. Wright, 430 U.S. 651, 672 (1977). If 27 invoked, we “must first ask whether the asserted individual interests are encompassed 28 within the Fourteenth Amendment’s protection of life, liberty or property; if protected 1 interests are implicated, we then must decide what procedures constitute due process of 2 law.” Id. (quotation marks omitted). “Due process always requires, at a minimum, notice 3 and an opportunity to respond.” U.S. v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014). 4 Here, Plaintiff did not allege enough facts for the Court to plausibly infer any 5 Fourteenth Amendment violation. In Carlsbad, it is unlawful for a person to park an 6 “oversized vehicle” on any city street or parking lot between the hours of 2:00 a.m. and 7 5:00 a.m., subject to certain exceptions. See Carlsbad Mun. Code §§ 10.40.180(A)–(D). 8 An “oversized vehicle” is “any motorized vehicle” or “combination of motorized vehicles 9 and/or non-motorized vehicles or trailers that meets or exceeds 22 feet in length.” Id. 10 Between January and June 2022, Plaintiff alleged that Defendants ticketed her about thirty 11 times for parking her 22-foot trailer on Carlsbad streets overnight. FAC ¶¶ 1–21. Plaintiff 12 complained about and challenged the enforcement of this oversized vehicle parking 13 ordinance with Defendants. Id. 14 Plaintiff alleged that “California Penal Code § 832.5” requires each law enforcement 15 agency to have a “complaint program,” which Defendants violated by failing to investigate 16 some of her complaints. Id. ¶¶ 1–19. This included complaints about police misconduct in 17 violation of “California Penal Code § 832.7.” Id. ¶¶ 2–4. Specifically, Plaintiff alleged that 18 Defendants “failed to develop an effective program to handle citizens grievances relating 19 to police officers’ misconduct;” “denied Plaintiff her constitutional right to due process, to 20 investigate police officers for improper conduct” as “[n]o investigation ever took place;” 21 and “failed to establish department protocols when encountering involuntary homeless 22 citizen on public property,” including “by systemic practice and procedure, that denied a 23 senior citizen access to park her 22ft home/trailer on public streets between the hours of 24 2:00-5:00am.” Id. ¶¶ 5–7. 25 The Court finds these allegations to be conclusory. In addition, even if Defendants 26 did not attentively respond to each and every one of Plaintiff’s many complaints, the Court 27 does not find that such a failure deprived Plaintiff of any plausible life, liberty, or property 28 interest under the Fourteenth Amendment. Perhaps she meant to allege that receiving the 1 parking citations deprived her of a life, liberty, or property interest instead. This is not clear 2 from the face of her FAC. See generally FAC. But even assuming that Plaintiff alleged 3 receiving relatively modest parking tickets deprived her of a constitutionally cognizable 4 property interest or the like, she certainty did not allege that Defendants deprived her of 5 the right to notice or an opportunity to respond. To the contrary, Plaintiff explicitly alleged 6 that Defendants had a procedure in place for her to contest them and informed her as much. 7 See id. ¶ 9 (“If you wish to contest a parking citation you can do so here: Pay or Contest 8 Your Parking Ticket │ Carlsbad, CA (carlsbadca.gov).”); see also Cal. Veh. Code § 40215; 9 Carlsbad Mun. Code § 10.42.010(C). 10 Because Plaintiff did not allege enough facts to plausibly establish a claim under the 11 Fourteenth Amendment’s Due Process Clause, the Court DISMISSES her first claim.1 12 2. The ADA and Rehabilitation Act (Claims 3 and 4) 13 Next, the Court considers Plaintiff’s third and fourth claims for violations under the 14 ADA and Section 504 of the Rehabilitation Act. Under the ADA, “no qualified individual 15 with a disability shall, by reason of such disability, be excluded from participation in or be 16 denied the benefits of services, programs, or activities of a public entity, or be subjected to 17 discrimination by any such entity.” 42 U.S.C. § 12132. “Title II of the ADA was expressly 18 modeled after Section 504 of the Rehabilitation Act,” so the two claims often rise or fall 19 together. See Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999). 20 “To make out a prima facie case under either the ADA or Rehabilitation Act,” one 21 must show that (1) she is “disabled under the Act;” (2) she is “otherwise qualified;” (3) she 22 was excluded, denied, or discriminated against “solely because of her disability;” and 23 (4) the defendant “receives federal financial assistance (for the Rehabilitation Act claim)” 24 or “is a public entity (for the ADA claim).” See id. The ADA defines “disability” as 25 “(A) a physical or mental impairment that substantially limits one or more major life 26 27 1 Inasmuch as state-law causes of action can be plausibly mined from Plaintiff’s first claim, 28 1 activities of such individual; (B) a record of such an impairment; or (C) being regarded as 2 having such an impairment.” 42 U.S.C. § 12102(1). Meanwhile, a “qualified individual 3 with a disability” is one who, “with or without reasonable modifications to rules,” “meets 4 the essential eligibility requirements” for “participation in programs or activities provided 5 by a public entity.” Id. § 12131(2). 6 Here, Plaintiff did not allege enough facts to plausibly suggest that she is disabled 7 under the ADA, let alone that she was excluded, denied, or otherwise discriminated against 8 because of that disability. At bottom, Plaintiff alleged that Defendants failed to reasonably 9 accommodate her, a disabled senior citizen, by “failing to provide a process for individuals 10 with disabilities to seek an exemption from enforcement or an alternative in the form of 11 safe parking,” which “discriminates against houseless people with disabilities who live in 12 vehicles based on their disabilities.” See FAC ¶¶ 26–30. Other than conclusorily allege that 13 she was a “senior citizen,” she did not allege how she was recorded as, regarded as, or 14 actually “disabled.” See generally FAC. Courts have dismissed claims on this basis alone. 15 See Budnick v. Town of Carefree, 518 F.3d 1109, 1115 (9th Cir. 2008) (noting that “being 16 old is not, per se, equivalent to being disabled”); Eulitt v. City of San Diego, No. 18-cv- 17 2721-AJB-WVG, 2020 WL 2555776, at *3–4 (S.D. Cal. May 20, 2020) (dismissing the 18 plaintiff’s ADA claim because she did not allege enough facts to plausibly suggest that she 19 has “any kind of mental or physical impairment”). Plaintiff living out of her 22-foot trailer 20 due to financial necessity is not a disability, either. See Weinreich v. Los Angeles Cnty. 21 Metro. Transp. Auth., 114 F.3d 976, 979 (9th Cir. 1997) (finding that the plaintiff’s 22 “inability to satisfy a condition of eligibility because of his financial circumstances” was 23 not a “disability” under “the ADA or Rehabilitation Act”). 24 In a response to one of the Court’s orders to show cause, Plaintiff did say she was 25 “losing her ability to walk.” ECF No. 28, at 2. But since this allegation was not in her FAC, 26 the Court does not address it other than in this arguendo. Even assuming that Plaintiff’s 27 unspecified walking difficulty was substantial and qualified as a disability under the ADA, 28 she did not plead enough facts to plausibly suggest that she was excluded, denied, or 1 otherwise discriminated against because of that disability. For instance, she did not allege 2 facts plausibly suggesting that a disability required her to park her 22-foot trailer on 3 Carlsbad streets overnight, that Defendant targeted her because of that disability, or that 4 the ordinance disparately burdened or impacted her on account of that disability. 5 On the last point, Plaintiff correctly argued that a facially neutral program can violate 6 the ADA if it disparately burdens or impacts the disabled. See ECF No. 27 (citing Bloom 7 v. City of San Diego, No. 17-cv-2324-AJB-NLS, 2018 WL 9539238 (S.D. Cal. Jun. 8, 8 2018)). That court found the plaintiffs stated a claim under the ADA and Rehabilitation 9 Act when challenging a similar ordinance, but only because they alleged sufficient facts to 10 plausibly convey that they were both disabled and disproportionately burdened by the 11 ordinance. Bloom, 2018 WL 9539238, at *3 (“Here, plaintiffs allege three ways in which 12 they are disproportionately burdened by the ordinances: (1) plaintiffs cannot simply stay at 13 the City’s homeless shelters as the shelters cannot accommodate plaintiffs’ disabilities; 14 (2) plaintiffs’ pre-existing conditions makes them more vulnerable to unsheltered 15 homelessness if their RVs are impounded; and (3) plaintiffs cannot access permanent 16 housing since their disabilities preclude them from working and result in fixed incomes.”). 17 Thus, the court reasoned, while “the City does raise credible issues as to the complaint’s 18 focus on homelessness as the discerning factor here rather than plaintiffs’ disabilities, the 19 complaint addresses these deficiencies” in those three ways. Id. at *4. 20 Conversely, nowhere in Plaintiff’s FAC did she allege facts for (1) why her disability 21 cannot be accommodated at the City’s homeless shelters; (2) why her disability made her 22 more vulnerable to unsheltered homelessness; or (3) why her disability precluded her from 23 working and accessing permanent housing. See generally FAC. This case is therefore 24 disanalogous from Bloom and analogous to Eulitt, a later opinion authored by the same 25 judge. There, the court dismissed an ADA claim because the plaintiffs, who were evicted 26 from their trailer parks, alleged “no details as to why the Ordinance No. 2584,” “a facially 27 neutral regulation that is generally applicable to all people regardless of disability status,” 28 “places a disproportionate burden on the disabled or any factual support that there is 1 disparate impact.” Eulitt, 2020 WL 2555776, at *3–4. 2 Because Plaintiff did not allege enough facts to plausibly establish a claim under the 3 ADA or Rehabilitation Act, the Court DISMISSES her third and fourth claims. 4 IV. SUPPLEMENTAL JURISDICTION 5 The Court “has dismissed all claims over which it has original jurisdiction,” that is 6 Claims 1, 3, and 4, so it “may decline to exercise supplemental jurisdiction” over the state- 7 law claims, namely Claims 2 and 5. See 28 U.S.C. § 1367(c)(3). In fact, “in the usual case 8 in which all federal-law claims are eliminated before trial, the balance of factors to be 9 considered under the pendent jurisdiction doctrine—judicial economy, convenience, 10 fairness, and comity—will point toward declining to exercise jurisdiction over the 11 remaining state-law claims.” See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 12 (1988). This Court finds the same and declines to exercise supplemental jurisdiction over 13 all state-law claims. 14 V. LEAVE TO AMEND 15 Courts have discretion to grant leave to amend a complaint “when justice so 16 requires.” Fed. R. Civ. P. 15(a)(2). This discretion is guided by the strong federal policy 17 favoring dispositions on the merits and permitting amendments with “extreme liberality.” 18 DCD Programs Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Courts consider five 19 factors during this deliberation: (1) “undue delay,” (2) “bad faith or dilatory motive on the 20 part of the movant,” (3) “repeated failure to cure deficiencies by amendments previously 21 allowed,” (4) “undue prejudice to the opposing party,” and (5) “futility of amendment.” 22 Foman v. Davis, 371 U.S. 178, 182 (1962). “The district court’s discretion to deny leave 23 to amend is particularly broad where plaintiff has previously amended the complaint.” 24 Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). 25 As this Court found in granting Plaintiff’s request for more time to file the FAC, 26 “the undue-delay factor has shifted in favor of Defendant” since it took over six months 27 for Plaintiff to amend her complaint. ECF No. 22, at 3. Delay alone “cannot justify denial 28 of leave to amend, but when combined with a showing of prejudice, bad faith, or futility of 1 amendment, leave to amend will likely be denied.” Larios v. Nike Retail Servs., Inc., 2 No. 11-cv-1600-GPC-NLS, 2013 WL 4046680, at *3 (S.D. Cal. Aug. 9, 2013) (citation 3 omitted). Sometimes, “delay in itself may be evidence of bad faith sufficient to justify 4 denial of leave to amend.” Id. This Court did not previously find Plaintiff to have “clear” 5 bad faith or dilatory motive. ECF No. 22, at 3–4. But since then, Plaintiff has missed her 6 deadline to oppose Defendants’ motion to dismiss. See ECF Nos. 25–27. Moreover, despite 7 the substantive similarity from Plaintiff’s original complaint to her FAC—including 8 repeated references to Carlsbad Police Chief Mikey Williams—she only added him as a 9 defendant in the FAC. Compare ECF No. 1 with FAC. A similar concern of gamesmanship 10 arises when considering that Plaintiff did not allege she was disabled in her original 11 complaint, conclusorily added it to her FAC, and only alleged that she was losing her ability 12 to walk after she missed the deadline to oppose Defendants’ second motion to dismiss. 13 See ECF Nos. 1, 23, 25, 28. At best, then, the bad-faith factor is neutral while the undue- 14 delay factor weighs heavily against amendment. See Landmark Equity Fund II, LLC v. 15 Arias, No. 15-cv-0202-JLT, 2015 WL 7458856, at *6 (E.D. Cal. Nov. 24, 2015) (“Because 16 Plaintiff ‘knew or should have known’ the facts when the First Amended Complaint was 17 filed, Plaintiff has unduly delayed by waiting more than six months to seek leave to amend 18 the pleadings.”); Hernandez v. Winstar Props., Inc., No. 16-cv-4697-ODW-KSx, 2017 WL 19 3741258, at *2 (C.D. Cal. Aug. 30, 2017) (“Generally, it is inexcusable for a party to miss 20 an unambiguous deadline.”). 21 Plaintiff has failed to cure the deficiencies from her original complaint in her FAC, 22 too, so this Court’s discretion to deny further leave to amend is “particularly broad.” 23 See Ascon, 866 F.2d at 1160. Indeed, outside of Plaintiff swapping out her old claims with 24 new ones, the factual nucleus over her complaints is largely the same. This Court finds that 25 further leave to amend would thus be futile. See Zucco Partners, LLC v. Digimarc Corp., 26 552 F.3d 981, 1007 (9th Cir. 2012) (affirming the district court’s dismissal of the amended 27 complaint with prejudice when the plaintiffs “failed to correct” the “deficiencies” in their 28 prior complaint, which is “a strong indication that the plaintiffs have no additional facts to 1 plead”); Finley v. Williams, No. 21-cv-6277-RGK-PD, 2022 WL 2036309, at *3 (C.D. Cal. 2 Jan. 24, 2022) (dismissing amended complaint with prejudice when it found amendment 3 to be “futile” because the plaintiff did not cure the deficiencies in his prior complaint). 4 Finally, granting further leave to amend would unduly prejudice Defendants. Of all 5 the factors, “prejudice to the opposing party carries the most weight.” Brown v. Stored 6 Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020). This action has been pending for over 7 two years, in part due to Plaintiff repeatedly missing deadlines. During this time, 8 Defendants have briefed and prevailed on their motion to dismiss the original complaint, 9 moved to dismiss the action for failure to prosecute, briefed and prevailed on their motion 10 to dismiss Plaintiff’s appeal for lack of jurisdiction, opposed Plaintiff’s motion for more 11 time to file a FAC, responded to orders to show cause regarding which parties were 12 properly named and served with the FAC, and now briefed and prevailed on their motion 13 to dismiss the FAC. See ECF Nos. 7, 9, 11, 15, 20, 25, 32, 36, 41. Courts have found “undue 14 prejudice” under far less egregious facts. See CertainTeed Gypsum, Inc. v. Pac. Coast Bldg. 15 Prods., Inc., No. 19-cv-0802-LHK, 2021 WL 5449073, at *12 (N.D. Cal. Nov. 22, 2021) 16 (dismissing amended complaint with prejudice since “requiring Defendants to file yet 17 another motion to dismiss would be unduly prejudicial” and “cause undue delay”); Finley, 18 2022 WL 2036309, at *3 (dismissing amended complaint with prejudice when it found 19 amendment “would prejudice Defendant by inviting another motion to dismiss”). Nor did 20 Plaintiff justify why she waited to raise her “new theories,” which, as here, are “not 21 reviewed favorably when the facts and the theory have been known to the party seeking 22 amendment since the inception of the cause of action.” Acri v. Int’l Ass’n of Machinists & 23 Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir. 1986). Defendants, having already 24 addressed this case in a variety of different postures, would have to wait and likely expend 25 more resources to file a third motion to dismiss. For all these reasons, further leave to 26 amend unduly prejudices Defendants. 27 Overall, the Foman factors weigh heavily against amendment, so the Court does not 28 grant Plaintiff leave to amend her complaint again. 1 |} VI. CONCLUSION 2 Accordingly, the Court GRANTS IN PART Defendants’ Motion to Dismiss 3 || Plaintiff's FAC: all federal-law claims (Claims 1, 3, and 4) are DISMISSED with prejudice 4 ||and, since the Court declines to exercise supplemental jurisdiction, all state-law claims 5 ||(Claims 2 and 5) are DISMISSED without prejudice to refiling in state court.? The Clerk 6 CLOSE this case. 7 IT IS SO ORDERED. 8 || Dated: August 5, 2025 NO 9 QF 10 Honorable Linda Lopez 1 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2oi}o020tti<“i‘< OO! 27 ||? As previously mentioned, to the extent other state-law causes of action can be plausibly 28 mined elsewhere in the FAC, they are likewise dismissed without prejudice because the Court declines to exercise supplemental jurisdiction over them.