Brooke v. Rihh LP ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THERESA BROOKE, Case No. 19-cv-06852-SI 8 Plaintiff, ORDER STRIKING PLAINTIFF'S 9 v. UNRUH ACT CLAIM 10 RIHH LP, Re: Dkt. No. 15 11 Defendant. 12 13 The Court is in receipt of plaintiff Theresa Brooke’s First Amended Complaint (“FAC”) 14 (Dkt. No. 15). Plaintiff’s FAC again alleges an Unruh Act claim, despite the Court’s previous 15 dismissal of that claim with prejudice. 16 The Court may strike portions of a pleading that are precluded by a previous order. Cleverley 17 v. Ballantyne, No. 2:12-cv-00444, 2014 U.S. Dist. LEXIS 9592, at *9 (D. Nev. Jan 24, 2014) (striking paragraphs of a pleading barred by a prior court order). “Plaintiff risks sanctions by 18 repleading claims previously dismissed with prejudice.” Franconero v. UMG Recordings Inc., No. 19 12-cv-03382, 2014 U.S. Dist. LEXIS 201091, at *12 (C.D. Cal. Feb. 13, 2014); see also Destfino v. 20 Reiswig, 630 F.3d 952, 959 (9th Cir. 2011) (affirming the court’s inherent power to control its docket 21 by dismissing a complaint for failure to comply with instructions provided on leave to amend). 22 Plaintiff need not replead the Unruh Act claim to preserve it for appeal. See Lacey v. 23 Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc) (“For claims dismissed with 24 prejudice and without leave to amend, we will not require that they be repled in a subsequent 25 amended complaint to preserve them for appeal.”). 26 However, even if plaintiff were granted leave to replead the Unruh Act claim, plaintiff’s new 27 facts—namely, defendant’s rebranding and plaintiff’s new office in San Jose, California—still fail 1 to show the alleged injury occurred in California. FAC P 1 and footnote 2. The Unruh Act only 2 || applies to “persons within the jurisdiction of [California].” Cal. Civ. Code §§ 51(b), (f). Plaintiff 3 || is acitizen of Arizona and the alleged harm occurred in Arizona where plaintiff viewed defendant’s 4 || website, so plaintiff does not have standing to bring an Unruh Act claim. Plaintiff was only granted 5 leave to amend her Americans with Disabilities Act (ADA) claim. 6 For the foregoing reasons and for good cause shown, the Court orders plaintiff's Unruh Act 7 || claim STRICKEN from plaintiffs FAC. 8 9 IT IS SO ORDERED. 19. || Dated: March 10, 2020 Site WU tee 11 TTT TTT SUSAN ILLSTON 12 United States District Judge 15 16 it Z 18 19 20 21 22 23 24 25 26 27 28