Free Motion to Amend/Correct - District Court of California - California

Case 3:07-cv-02301-JLS-POR

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Lynn Hubbard III, SBN 69773 Scottlynn J Hubbard, IV, SBN 212970 Law Offices of Lynn Hubbard 12 Williamsburg Lane Chico, CA. 95926 Telephone: (530) 895-3252 Facsimile: (530) 894-8244 Attorneys for Plaintiff, A.J. Oliver

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) ) ) ) Plaintiff, ) ) v. ) ) ) RALPHS GROCERY COMPANY ) dba FOOD 4 LESS #780; CYPRESS ) ) CREEK CO., LP dba PTC ) INVESTMENTS COMPANY, ) ) ) ) Defendants ) ) A.J. OLIVER,

Case No. 07cv2301 JLS (POR) Plaintiff's Motion to Modify the Scheduling Order and Amend His Complaint [FRCP 16(b) & 15(a)]

Date: August 7, 2008 Time: 1:30 p.m. Ctrm: 6 Honorable Janis L. Sammartino

I. INTRODUCTION Plaintiff A.J. Oliver seeks to add new barriers via a motion to amend. During the instant litigation, defendants have attempted to remove and/or correct the barriers to disabled access as outlined in Oliver's original
Oliver v. Ralphs Grocery Copmany, et al, Case No. 07CV2301 JLS (POR)
Plaintiff's Motion To Amend His Complaint

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complaint. However, plaintiff avers that despite defendants' attempts, access barriers remain, and as defendants disagree, he finds it necessary to amend his complaint. Furthermore, Oliver has discovered and/or learned about additional access barriers on the subject property that were not listed in his original complaint. Unfortunately, the last date to amend set by this Court in its Pre-Trial Scheduling Order was June 13, 2008. Previous to this date, and upon request by plaintiff, defendants refused to stipulate to an amended complaint. Therefore the instant motion is necessary, and this Court must also agree to modify its scheduling order so that said amendment can be filed. This Court should grant Oliver's motion not only because said amendments should be granted liberally, but also because no less an authority than the Ninth Circuit has ruled that not only can a party add new barriers through a motion to amend the complaint, but that said motion is essentially de rigueur in order to give adequate notice to the opposing party regarding any new barriers. Furthermore, good cause is present to allow the modification of the scheduling order, as the access barriers present (as alleged by plaintiff) on the subject property go to the heart of the instant lawsuit, and plaintiff could assess the access barriers on the property only after defendants had completed their re-model. Finally, there will be absolutely no prejudice to defendants if this Court grants leave for amendment; indeed, it is in the defendants' interests to be legally appraised of any alleged remaining access barriers via an amended complaint.1 /// ///

1

A copy of the proposed amended complaint has been attached hereto as Exhibit A.

Oliver v. Ralphs Grocery Copmany, et al, Case No. 07CV2301 JLS (POR)
Plaintiff's Motion To Amend His Complaint

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2

II. DISCUSSION A. Motion To Amend Plaintiff is cognizant that this Court is more than aware of the rules governing the amendment of complaints, so will be brief. As Federal Rule of Civil Procedure 15 states, "leave [to amend] shall be freely given when justice so requires." This policy is to be applied with "extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F3d 1048, 1051 (9th Cir. 2003). Indeed, the policy is to be construed so liberally, that the burden is on the non-moving party to show that leave to amend should not be granted. See Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993). Plaintiff also notes that he seeks leave to amend to alter his allegations regarding the architectural barriers to access present on the subject property, and not to amend to add a party. This is significant because "amendments seeking to add [or modify] claims are to be granted more freely than amendments adding parties." Union Pac. R.R. Co. v. Nevada Power Co., 950 F.2d 1429, 1432 (9th Cir. 1991) (emphasis added). In the instant case, Oliver seeks to amend his complaint to make perfectly clear to defendant ­ and this Court ­ what access barriers remain on the subject property following defendants' re-model and corrections.2 This is no way will prejudice defendants, and, indeed, allowing the amended complaint will ensure that defendants are given adequate notice of Oliver's allegations. See, e.g., Pickern v. Pier 1 Imports (US), Inc., 457 F.3d 963, 968-69 (9th Cir. 2006). The facts of the instant litigation support the amendment. Defendants have undertaken a re-model in an attempt to bring the subject Food 4 Less

These barriers also include newly discovered barriers, learned about after the filing of the complaint.

Oliver v. Ralphs Grocery Copmany, et al, Case No. 07CV2301 JLS (POR)
Plaintiff's Motion To Amend His Complaint

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grocery store into federal and state compliance. See Declaration of Lynn Hubbard, III in Support of Plaintiff's Motion to Modify Scheduling Order and Amend the Complaint (hereinafter "Hubbard Declaration"), ¶¶ 2-4 filed concurrently herewith. Unfortunately, the parties are in disagreement as to whether any access barriers remain on the subject property, and therefore plaintiff wishes to amend his complaint to make this clear. See Hubbard Declaration, ¶ 4. Unfortunately, defendants have spurned Oliver's proposal to amend the complaint via stipulation. See Hubbard Declaration, ¶ 6. Therefore, the instant motion is required pursuant to FRCP 15(a). B. Oliver Has Met the Standard of Rule 16(b) This Court, again, is no doubt aware of the standard for seeking to modify the scheduling order under Rule 16(b): "A schedule shall not be modified except upon a showing of good cause and by leave of the district judge..." Oliver has acted diligently and in good faith in seeking to amend his complaint. He does not seek this amendment for any dilatory purpose whatsoever. After learning that ADA violations still existed on the subject property despite defendants' re-model, and discovering other access barriers not known about prior to the filing of the complaint, Oliver sought a stipulation from all parties to amend his complaint. After being advised that no defendant would stipulate to such an amended complaint, Oliver filed the instant motion. There has been no "hiding of the ball." Oliver has acted in good faith, and diligently. Plaintiff acknowledges that he had sufficient time to amend his complaint after learning of the completion of the re-model prior to the cutoff date. However, the legal staff of plaintiff's counsel went through a complete turnover, and the necessity of new hiring, as well as training, cost
Oliver v. Ralphs Grocery Copmany, et al, Case No. 07CV2301 JLS (POR)
Plaintiff's Motion To Amend His Complaint

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plaintiff several weeks of time. See Hubbard Declaration, ¶ 5. Plaintiff in no way offers this information as justification as to why he was unable to amend his complaint prior to June 13, 2008. Rather, he respectfully offers it only as an explanation as to why plaintiff was unable to get his amended complaint filed in time. Again, there was no dilatory motivation, nor bad faith of any kind. Finally, there simply would be no prejudice to defendant should this Court grant Oliver's motion: the applicable law, and the issues to resolve will remain exactly the same. All that will change is the addition of new violations that relate to Oliver's disability, as well as making clear those barriers that were not corrected by the re-model, and that he wishes remedied so that he may patronize the subject store in a full and equal manner. III. CONCLUSION Oliver seeks to amend his complaint in order to add new ADA violations that he has either encountered or learned about from an inspection of the property, and to make clear which barriers alleged in the original complaint remain after defendants' re-model. Oliver has not acted in a dilatory manner, and is not acting in bad faith. There will be absolutely no prejudice to the defendants should this Court allow its scheduling order to be modified so that Oliver can amend his complaint. Therefore, Oliver respectfully asks that this Court GRANT his motion. Dated: June 30, 2008 LAW OFFICES OF LYNN HUBBARD /s/ Lynn Hubbard, III, Esquire LYNN HUBBARD, III Attorneys for Plaintiff, A.J. Oliver
Oliver v. Ralphs Grocery Copmany, et al, Case No. 07CV2301 JLS (POR)
Plaintiff's Motion To Amend His Complaint

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