Dragonas v. Macerich ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Bill Dragonas, Jr., No. CV-20-01648-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Macerich, et al., 13 Defendants. 14 15 There are two motions to dismiss pending in this matter. (Docs. 14, 18.) One motion 16 targets Plaintiff’s First Amended Complaint (Doc. 13). (Doc. 14.) The other targets 17 Plaintiff’s Second Amended Complaint (Doc. 16). (Doc. 18.) Because there is uncertainty 18 as to which complaint is operative, the Court will evaluate whether Plaintiff properly filed 19 his Second Amended Complaint (Doc. 16). For the reasons expressed herein, the Court 20 concludes the Second Amended Complaint is the operative complaint, and thus the Court 21 will deny Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. 14) 22 as moot. 23 Plaintiff, proceeding pro se, initiated this action in July 2020. (Doc. 1–1.) Defendant 24 moved to dismiss the case for lack of jurisdiction or, alternatively, for failure to state a 25 claim. (Doc. 5.) The Court interpreted Plaintiff’s initial Complaint (Doc. 1–1) as asserting 26 a claim under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a (“Title II”). 27 (Doc. 12 at 3–4.) Title II contains a notice provision that functions as a prerequisite for 28 federal jurisdiction. (Id. at 4.) Because Plaintiff failed to timely notify the Arizona Civil 1 Rights Division of the alleged discrimination at issue and failed to state a plausible claim 2 for relief, the Court granted Defendant’s motion to dismiss. (Id. at 4–11.) The Court 3 afforded Plaintiff leave to comply with Title II’s notice requirement and thereafter file an 4 amended complaint. (Id.) 5 Plaintiff timely filed a First Amended Complaint. (Doc. 13.) Defendant renewed its 6 motion to dismiss on March 19, 2021. (Doc. 14.) On March 22, 2021, Plaintiff responded 7 to the renewed motion to dismiss and contemporaneously filed a Second Amended 8 Complaint. (Docs. 15–16.) Plaintiff did not seek leave of court before filing the Second 9 Amended Complaint. Defendant contends Plaintiff’s amended pleading fails to comply 10 with this District’s Local Rules of Civil Procedure. (Doc. 17 at 2.) Given that allegation, 11 the Court must determine whether the First or Second Amended Complaint is operative. In 12 other words, the Court must determine whether Plaintiff properly filed the Second 13 Amended Complaint. 14 Preliminarily, the Court will address whether Rule 15(a) of the Federal Rules of 15 Civil Procedure required Plaintiff to seek leave of court before filing his Second Amended 16 Complaint (Doc. 16). The Ninth Circuit has “routinely [] viewed Rule 15(a)(1)’s ability to 17 amend as a right, one which is exhausted or limited only by the restrictions set forth in the 18 Rule itself.” Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1007 (9th Cir. 2015). 19 Rule 15 is “organized substantively, not chronologically.” Id. Thus, the ability to amend 20 under Rule 15(a)(1) is not “exhausted or waived once a 15(a)(2) amendment is made.” Id. 21 Here, Plaintiff filed the First Amended Complaint with the Court’s leave. (See Docs. 12– 22 13.) Thus, that amendment was made pursuant to Rule 15(a)(2). Fed. R. Civ. P. 15(a)(2) 23 (“a party may amend its pleading [] with . . . the court’s leave.”). Plaintiff could “thereafter 24 utilize his one matter of course amendment under 15(a)(1).” Ramirez, 806 F.3d at 1007. 25 Under that provision, a plaintiff may amend his complaint, as a matter of course, “within 26 . . . 21 days after service of a motion under Rule 12(b).” Fed. R. Civ. P. 15(a)(1)(B). 27 Because Plaintiff filed the Second Amended Complaint three days after Defendant’s 28 renewed Rule 12(b) motion (Doc. 14), Plaintiff timely filed his Second Amended 1 Complaint. The Court therefore concludes that Plaintiff was permitted to file the Second 2 Amended Complaint as a matter of course. 3 The Court next addresses Plaintiff’s failure to comply with the Local Rules of Civil 4 Procedure. Pursuant to the Local Rules, when a plaintiff files an amended complaint as a 5 matter of course, the plaintiff “must file a separate notice of filing the amended pleading.” 6 LRCiv 15.1(b). The plaintiff must attach a copy of the amended complaint to such notice, 7 indicating how the amended complaint differs from the complaint that it amends. Id. As 8 Defendant correctly notes, Plaintiff did not comply with Rule 15.1(b) of the Local Rules. 9 (Doc. 17 at 2.) The Court reminds Plaintiff that compliance with the Local Rules is 10 mandatory, even for pro se litigants, and that the failure to comply with those rules in the 11 future may result in denial of motions or dismissal of the case. See Lachcik v. Maricopa 12 Cnty. Bd. of Comm’rs, No. CV-15-02318-PHX-DGC, 2016 WL 4367138, at *2 (D. Ariz. 13 Aug. 16, 2016). That said, the Court must apply “Rule 15’s policy of favoring amendments 14 to pleadings . . . with ‘extreme liberality.’” United States v. Webb, 655 F.2d 977, 979 (9th 15 Cir. 1981). Accordingly, the Court, in its discretion, concludes that the Second Amended 16 Complaint is now the operative complaint in this matter. 17 Under Ninth Circuit law, it is “well-established . . . that an ‘amended complaint 18 supersedes the original, the latter being treated thereafter as non-existent.’” Ramirez, 806 19 F.3d at 1008. Because Plaintiff’s Second Amended Complaint supersedes the First 20 Amended Complaint, the First Amended Complaint “no longer performs any function.” 21 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Defendant’s renewed motion to 22 dismiss (Doc. 14) targets the First Amended Complaint. The motion to dismiss (Doc. 14) 23 is therefore moot. See Ramirez, 806 F.3d at 1008. 24 Accordingly, 25 /// 26 /// 27 /// 28 /// 1 IT IS ORDERED denying Defendant’s Motion to Dismiss Plaintiffs First 2|| Amended Complaint with Prejudice (Doc. 14) as moot. The Court will consider 3|| Defendant’s Motion to Dismiss Plaintiff's Second Amended Complaint with Prejudice (Doc. 18) once it is fully briefed. 5 Dated this 25th day of March, 2021. 6 Wicheal T. Fburde Michael T. Liburdi 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-