1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 T.T. Case No.: 3:19-cv-00407-AJB-AGS
12 Plaintiff, ORDER DENYING DEFENDANTS’ 13 v. MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED COMPLAINT 14 COUNTY OF SAN DIEGO, a public (Doc. No. 29) entity; ELISA KENDALL, an individual; 15 BETTY SIEGEL, an individual; MARY 16 DEAN COOPER, an individual; FRED BYERLEE, an individual; NINA URIBE, 17 an individual; DIONNE G. EDWARDS- 18 SIMMONS, an individual; DOES 1 through 20, inclusive, 19 Defendants. 20 21 22 Presently before the Court is Defendants County of San Diego, Elisa Kendall, Fred 23 Byerlee, Nina Uribe, and Dionne G. Edwards-Simmons (“Defendants”) motion to strike 24 Plaintiff T.T.’s (“Plaintiff”) Second Amended Complaint (“SAC”). (Doc. No. 29.) 25 Defendant Mary Dean Cooper joins in Defendants’ motion to strike. (Doc. No. 38.) For the 26 reasons set forth below, the Court DENIES Defendants’ motion to strike Plaintiff’s SAC. 27 / / / 28 / / / 1 I. BACKGROUND 2 On February 28, 2019, Plaintiff filed her initial complaint for damages alleging a 3 violation of a constitutional right to be protected by her foster parent and County of San 4 Diego. (Doc. No. 1.) On March 7, 2019, Plaintiff realized that Defendants Nancy Uribe 5 and Dionne G. Edwards-Simmons were not properly named in the caption of the pleading. 6 Realizing her mistake, Plaintiff filed an ex parte motion to amend/correct the caption of 7 her complaint to add the proper names. (Doc. No. 7.) The Court subsequently granted the 8 Plaintiff’s motion to amend/correct the complaint. (Doc. No. 8.) On March 22, 2019, 9 Plaintiff filed her Corrected Complaint for Damages (hereinafter “First Amended 10 Complaint” or “FAC”) with the corrected names of the Defendants listed in the caption of 11 the pleading. (Doc. No. 9). 12 On May 6, 2019, Defendants filed a motion to dismiss claiming Plaintiff’s claims 13 were time-barred and that there was no plausibly plead Monell claim against the County of 14 San Diego. (Doc. No. 11.) On May 29, 2019, Defendants Fred Byerlee, Nina Uribe, and 15 Dionne G. Edwards-Simmons (collectively “Social Workers”) filed their motion to dismiss 16 arguing Plaintiff’s claims were time-barred and that each were entitled to qualified 17 immunity. (Doc. No. 22.) On June 19, 2019, in response to Defendants’ motions to dismiss, 18 Plaintiff filed her SAC. (Doc. No. 27.) 19 The Court then found Defendants’ motions to dismiss moot in light of Plaintiff’s 20 SAC. Defendants’ filed the instant motion to strike Plaintiff’s SAC on July 3, 2019. (Doc. 21 No. 29.) Plaintiff opposes the motion. This order follows. 22 II. LEGAL STANDARD 23 Under Federal Rule of Civil Procedure 12(f), on its own or by motion, the Court 24 “may strike from a pleading an insufficient defense or any redundant, immaterial, 25 impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The purpose of Rule 12(f) is to 26 “avoid the expenditure of time and money that must arise from litigating spurious issues 27 by dispensing with those issues prior to trial….” Sidney-Vinstein v. A.H. Robins Co., 697 28 F.2d 880, 885 (9th Cir. 1983). The Court must view the pleadings in the light most 1 favorable to the non-moving party. Cal. Dept. of Toxic Substances Control v. Alco Pac. 2 Inc., 217 F.Supp.2d 1028, 1033 (C.D. Cal. 2002). “Any doubt concerning the import of the 3 allegations to be stricken weighs in favor of denying the motion to strike.” In re Wal-Mart 4 Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 614 (N.D. Cal. 2007) (citation 5 omitted). 6 III. DISCUSSION 7 Defendants move to strike Plaintiffs’ SAC arguing (1) Plaintiff exhausted her right 8 to amend as a matter of course, (2) Plaintiff did not have the Court’s leave to file the SAC, 9 and (3) allowing the amendment would be futile because the statute of limitations bars 10 Plaintiff’s action. 11 1. Exhaustion of Right to Amend Claim 12 Defendants argue Plaintiff exhausted her right to amend as a matter of course when 13 she filed her FAC on March 22, 2019. (Doc. No. 29 at 4.) Defendants further explain that 14 because Plaintiff filed her FAC, she can no longer amend without Defendants’ written 15 consent or leave of court pursuant to Rule 15(a). (Id. at 4.) Additionally, Defendants state 16 Plaintiff did in fact amend her complaint when she corrected the caption to include the 17 names of the social worker Defendants. (Id. at 4.) On the other hand, Plaintiff argues this 18 cosmetic correction to the complaint was not an amendment. Plaintiff urges the Court to 19 recognize the validity of her SAC. (Doc. No. 35 at 2.) The Court finds that Plaintiff’s 20 corrected complaint was an amendment within the meaning of Rule 15(a). However, as 21 will be discussed below, Plaintiff first amended her complaint with the Court’s leave 22 pursuant to Rule 15(a)(2). Thus, Plaintiff had not utilized her Rule 15(a)(1)(B) right to 23 amend as a matter of course. 24 Rule 15(a) provides: 25 (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: 26 (A) 21 days after serving it, or 27 (B) If the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 28 1 days after service of a motion under 12(b), (e), or (f), whichever is earlier. 2 (2) Other Amendments. In all other cases, a party may amend 3 its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so 4 requires. 5 6 Fed. R. Civ. P. 15(a). The Ninth Circuit in Ramirez held that a “[p]laintiff’s 15(a)(2) 7 amendment, filed first in time, cannot be construed as a waiver or exhaustion of his 8 automatic right to amend under 15(a)(1), so long as that amendment was timely.” Ramirez 9 v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). There, Ramirez filed a 10 first amended complaint with the consent of the court pursuant to 15(a)(2). Id. at 1004. 11 Shortly after the first amended complaint was filed, the County of San Bernardino filed a 12 motion to dismiss pursuant to Rule 12(b)(6). Id. Rather than filing an opposition to the 13 County of San Bernardino’s motion to dismiss, Ramirez attempted to file a Second 14 Amended Complaint. Id. The court denied Ramirez’s Second Amended Complaint because 15 leave of court was not sought or granted. Id. Ramirez appealed this decision and the Ninth 16 Circuit found that Rule 15 provides different ways to amend a complaint, and a plaintiff 17 may amend in whatever order he sees fit, so long as he complies with Rule 15. Id. at 1007. 18 The Ninth Circuit further reasoned that “Rule 15 is organized substantively, not 19 chronologically.” Id. Therefore, a plaintiff “may amend in whatever order he sees fit 20 provided he complies with the respective requirements found within 15(a)(1) and 21 15(a)(2).” Id. 22 The facts of Ramirez are nearly identical to the case at hand. Here, the Court granted 23 Plaintiff’s ex parte motion to correct/amend her initial complaint, allowing an amendment 24 within the guidelines of Rule 15(a)(2). The filing of the FAC did not exhaust Plaintiff’s 25 right as a matter of course to later amend after service of a motion under Rule 12(b).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 T.T. Case No.: 3:19-cv-00407-AJB-AGS
12 Plaintiff, ORDER DENYING DEFENDANTS’ 13 v. MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED COMPLAINT 14 COUNTY OF SAN DIEGO, a public (Doc. No. 29) entity; ELISA KENDALL, an individual; 15 BETTY SIEGEL, an individual; MARY 16 DEAN COOPER, an individual; FRED BYERLEE, an individual; NINA URIBE, 17 an individual; DIONNE G. EDWARDS- 18 SIMMONS, an individual; DOES 1 through 20, inclusive, 19 Defendants. 20 21 22 Presently before the Court is Defendants County of San Diego, Elisa Kendall, Fred 23 Byerlee, Nina Uribe, and Dionne G. Edwards-Simmons (“Defendants”) motion to strike 24 Plaintiff T.T.’s (“Plaintiff”) Second Amended Complaint (“SAC”). (Doc. No. 29.) 25 Defendant Mary Dean Cooper joins in Defendants’ motion to strike. (Doc. No. 38.) For the 26 reasons set forth below, the Court DENIES Defendants’ motion to strike Plaintiff’s SAC. 27 / / / 28 / / / 1 I. BACKGROUND 2 On February 28, 2019, Plaintiff filed her initial complaint for damages alleging a 3 violation of a constitutional right to be protected by her foster parent and County of San 4 Diego. (Doc. No. 1.) On March 7, 2019, Plaintiff realized that Defendants Nancy Uribe 5 and Dionne G. Edwards-Simmons were not properly named in the caption of the pleading. 6 Realizing her mistake, Plaintiff filed an ex parte motion to amend/correct the caption of 7 her complaint to add the proper names. (Doc. No. 7.) The Court subsequently granted the 8 Plaintiff’s motion to amend/correct the complaint. (Doc. No. 8.) On March 22, 2019, 9 Plaintiff filed her Corrected Complaint for Damages (hereinafter “First Amended 10 Complaint” or “FAC”) with the corrected names of the Defendants listed in the caption of 11 the pleading. (Doc. No. 9). 12 On May 6, 2019, Defendants filed a motion to dismiss claiming Plaintiff’s claims 13 were time-barred and that there was no plausibly plead Monell claim against the County of 14 San Diego. (Doc. No. 11.) On May 29, 2019, Defendants Fred Byerlee, Nina Uribe, and 15 Dionne G. Edwards-Simmons (collectively “Social Workers”) filed their motion to dismiss 16 arguing Plaintiff’s claims were time-barred and that each were entitled to qualified 17 immunity. (Doc. No. 22.) On June 19, 2019, in response to Defendants’ motions to dismiss, 18 Plaintiff filed her SAC. (Doc. No. 27.) 19 The Court then found Defendants’ motions to dismiss moot in light of Plaintiff’s 20 SAC. Defendants’ filed the instant motion to strike Plaintiff’s SAC on July 3, 2019. (Doc. 21 No. 29.) Plaintiff opposes the motion. This order follows. 22 II. LEGAL STANDARD 23 Under Federal Rule of Civil Procedure 12(f), on its own or by motion, the Court 24 “may strike from a pleading an insufficient defense or any redundant, immaterial, 25 impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The purpose of Rule 12(f) is to 26 “avoid the expenditure of time and money that must arise from litigating spurious issues 27 by dispensing with those issues prior to trial….” Sidney-Vinstein v. A.H. Robins Co., 697 28 F.2d 880, 885 (9th Cir. 1983). The Court must view the pleadings in the light most 1 favorable to the non-moving party. Cal. Dept. of Toxic Substances Control v. Alco Pac. 2 Inc., 217 F.Supp.2d 1028, 1033 (C.D. Cal. 2002). “Any doubt concerning the import of the 3 allegations to be stricken weighs in favor of denying the motion to strike.” In re Wal-Mart 4 Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 614 (N.D. Cal. 2007) (citation 5 omitted). 6 III. DISCUSSION 7 Defendants move to strike Plaintiffs’ SAC arguing (1) Plaintiff exhausted her right 8 to amend as a matter of course, (2) Plaintiff did not have the Court’s leave to file the SAC, 9 and (3) allowing the amendment would be futile because the statute of limitations bars 10 Plaintiff’s action. 11 1. Exhaustion of Right to Amend Claim 12 Defendants argue Plaintiff exhausted her right to amend as a matter of course when 13 she filed her FAC on March 22, 2019. (Doc. No. 29 at 4.) Defendants further explain that 14 because Plaintiff filed her FAC, she can no longer amend without Defendants’ written 15 consent or leave of court pursuant to Rule 15(a). (Id. at 4.) Additionally, Defendants state 16 Plaintiff did in fact amend her complaint when she corrected the caption to include the 17 names of the social worker Defendants. (Id. at 4.) On the other hand, Plaintiff argues this 18 cosmetic correction to the complaint was not an amendment. Plaintiff urges the Court to 19 recognize the validity of her SAC. (Doc. No. 35 at 2.) The Court finds that Plaintiff’s 20 corrected complaint was an amendment within the meaning of Rule 15(a). However, as 21 will be discussed below, Plaintiff first amended her complaint with the Court’s leave 22 pursuant to Rule 15(a)(2). Thus, Plaintiff had not utilized her Rule 15(a)(1)(B) right to 23 amend as a matter of course. 24 Rule 15(a) provides: 25 (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: 26 (A) 21 days after serving it, or 27 (B) If the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 28 1 days after service of a motion under 12(b), (e), or (f), whichever is earlier. 2 (2) Other Amendments. In all other cases, a party may amend 3 its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so 4 requires. 5 6 Fed. R. Civ. P. 15(a). The Ninth Circuit in Ramirez held that a “[p]laintiff’s 15(a)(2) 7 amendment, filed first in time, cannot be construed as a waiver or exhaustion of his 8 automatic right to amend under 15(a)(1), so long as that amendment was timely.” Ramirez 9 v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). There, Ramirez filed a 10 first amended complaint with the consent of the court pursuant to 15(a)(2). Id. at 1004. 11 Shortly after the first amended complaint was filed, the County of San Bernardino filed a 12 motion to dismiss pursuant to Rule 12(b)(6). Id. Rather than filing an opposition to the 13 County of San Bernardino’s motion to dismiss, Ramirez attempted to file a Second 14 Amended Complaint. Id. The court denied Ramirez’s Second Amended Complaint because 15 leave of court was not sought or granted. Id. Ramirez appealed this decision and the Ninth 16 Circuit found that Rule 15 provides different ways to amend a complaint, and a plaintiff 17 may amend in whatever order he sees fit, so long as he complies with Rule 15. Id. at 1007. 18 The Ninth Circuit further reasoned that “Rule 15 is organized substantively, not 19 chronologically.” Id. Therefore, a plaintiff “may amend in whatever order he sees fit 20 provided he complies with the respective requirements found within 15(a)(1) and 21 15(a)(2).” Id. 22 The facts of Ramirez are nearly identical to the case at hand. Here, the Court granted 23 Plaintiff’s ex parte motion to correct/amend her initial complaint, allowing an amendment 24 within the guidelines of Rule 15(a)(2). The filing of the FAC did not exhaust Plaintiff’s 25 right as a matter of course to later amend after service of a motion under Rule 12(b). 26 Following the holding in Ramirez, Plaintiff was permitted to amend her complaint in 27 whatever order, so long as she complied with the rule itself. In this instance, Plaintiff 28 complied with Rule 15 when she first requested leave to amend then later filed her SAC. 1 Moreover, Plaintiff timely filed her SAC as a matter of course as the SAC was filed twenty- 2 one days after Defendants’ motion to dismiss. Therefore, this Court finds Plaintiff’s SAC 3 was permissible under Rule 15(a). 4 2. Request Leave to File Claim 5 On March 15, 2019, Plaintiff filed an ex parte motion to amend/correct her 6 complaint. (Doc. No. 7.) Plaintiff’s request was granted by the Court, allowing Plaintiff to 7 correct the mistake on the caption of the initial complaint. (Doc. No. 8.) Defendants argue 8 that Plaintiff failed to request written consent or leave from the Court to file its SAC. (Doc. 9 No. 29 at 4.) However, such consent or leave from the Court was unnecessary because 10 Plaintiff reserved her right to amend as a matter of course. Plaintiff’s FAC was filed with 11 permission by the Court. (Doc. No. 9.) Defendants concede in its reply to Plaintiff’s 12 opposition that “the Court’s order states, ‘Judge Battaglia: [grants Plaintiff’s] ex parte 13 motion for leave to file an amended complaint.” (Doc. No. 36 at 3.) 14 As discussed above, Rule 15(a)(2) permits a party to amend its pleading with the 15 court’s leave. Fed. R. Civ. P. 15(a)(2). “Five factors are taken into account to assess the 16 propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing 17 party, futility of the amendment, and whether the plaintiff has previously amended the 18 complaint.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) 19 (quoting Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)). These factors do not 20 “merit equal weight,” and “it is the consideration of prejudice to the opposing party that 21 carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 22 (9th Cir. 2003) (per curiam). “Absent prejudice, or a strong showing of any of the 23 remaining [ ] factors, there exists a presumption under Rule 15(a) in favor of granting leave 24 to amend.” Id. (emphasis in original). 25 The grant or denial of leave to amend is in the Court’s discretion. Swanson v. U.S. 26 Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). “In exercising this discretion, a court must 27 be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather 28 than on the pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1 || 1981). Consequently, the policy in favor of granting leave to amend is applied with extreme 2 || liberality. See Foman v. Davis, 371 U.S. 178, 181-82 (1962). 3 On March 20, 2019, the Court exercised its discretion and granted Plaintiffs leave 4 ||to amend her original complaint. (Doc. No. 8.) Although there is a dispute between the 5 || parties about whether Plaintiff's FAC was merely cosmetic, such issue does not play a role 6 ||in determining whether Plaintiff properly filed a SAC. This is because Plaintiff requested 7 || permission from the Court to file the FAC, making the amendment proper pursuant to Rule 8 || 15(a). Consequently, Plaintiff maintained her right to file an amended complaint as a matter 9 || of course without the Court’s leave. Therefore, the Court finds Plaintiff properly followed 10 || the guidelines laid out in Rule 15(a). 11 3. Statute of Limitations Claim 12 Defendants attempt to argue Plaintiff’s case is time-barred due to a statute of 13 || limitations issue. The Court finds the statute of limitations argument in the motion to strike 14 ||improper and therefore, declines to address such an issue at this stage. However, the Court 15 ||makes no determination on the merits of the statute of limitation issue. Accordingly, 16 Defendants may raise these arguments in a responsive pleading to Plaintiff's SAC. 17 IV. CONCLUSION 18 In light of the above, the Court DENIES Defendants’ motion to strike Plaintiff's 19 ||Second Amended Complaint. (Doc. No. 29.) Defendants will have twenty-one (21) days 20 || after the date of this Order to file a responsive pleading. 21 Dated: January 31, 2020 © ¢ 22 Hon. Anthony J.Battaglia 23 United States District Judge 24 25 26 27 28