Summary
granting motion to dismiss pursuant to Rule 15 "[b]ecause plaintiffs did not obtain leave to amend or written consent of the adverse party before filing their amended complaint containing additional claims and defendants"
Summary of this case from Vazquez v. ServicingOpinion
No C 06-6417 VRW.
October 15, 2007
ORDER
This action involves claims relating to the death of Letitia Breng Rose, mother of plaintiff Gail Sutton and grandmother of plaintiff Danielle Sutton. Defendant Walter Holz, Jr moves under FRCP 12(f) to strike plaintiffs first amended complaint (FAC). Doc # 113. Defendant Victorian Care Homes of the Monterey Peninsula, Inc (Victorian) joins Holz's motion to strike the FAC. Doc # 115. Plaintiffs oppose the motion and, in the alternative, seek leave to amend. In his reply brief, Holz strenuously opposes plaintiffs' proposed amendments. Doc # 121.
Because plaintiffs neither obtained leave of court nor written consent of the defendants as required by FRCP 15(a) before filing their first amended complaint, The court GRANTS Holz's motion to strike. Having considered the arguments presented in favor of and in opposition to plaintiffs' proposed amendment, the court DENIES leave to file the proposed FAC.
I
Gail Sutton, Danielle Sutton and John Sutton were the original plaintiffs in this matter. Gail Sutton is the daughter of now-deceased Letitia Breng Rose, Danielle Sutton is Gail's daughter and John Sutton is Gail's husband. Plaintiffs maintained pro se status in the initial stages of their suit. Plaintiffs' original complaint included claims for wrongful death (count I), elder abuse (count II), wrongful and willful dissipation of the estate (count III) and wrongful dissipation of the estate and failure to notice (count IV). Doc #1. All defendants except Victorian (which had not then been properly served with the complaint) individually filed motions to dismiss plaintiffs' complaint. The court issued an order that: dismissed defendant Leslie Foote without prejudice for improper service; dismissed all claims against defendants Roberta Sokotowski and Richard Bishop with prejudice; dismissed all claims against defendant Ann Sydes with prejudice; dismissed plaintiff John Sutton from the action with prejudice; and allowed Danielle Sutton to remain a plaintiff in the suit only as to the claim for elder abuse. Doc #72.
In conclusion, the court's order stated:
The only causes of action that remain in this lawsuit are those for wrongful death (claim #1) and elder abuse (claim #2) and the only remaining defendants are Holz and Victorian.
John Sutton is no longer a plaintiff in this action as he has been dismissed from the remaining claims for wrongful death and elder abuse. Danielle Sutton remains only as a plaintiff to the second cause of action for elder abuse.
Id.
On April 27, 2007, Holz filed an amended answer reflecting the rulings in the court's April 18 order. Doc # 73.
After plaintiffs did not properly serve their first complaint on Victorian and instead unsuccessfully sought entry of default against this entity, Mr William Ginsburg, attorney for Victorian, offered to answer plaintiffs complaint without service on the condition that plaintiffs first amend their complaint to comport with the courts order of April 13, 2007. Doc # 81. On July 16, 2007, the court ordered plaintiffs to amend their complaint and to send it by mail to Mr Ginsburg by July 27, 2007. Doc # 91.
Soon after, plaintiffs obtained counsel and, on July 26, 2007, filed their FAC. Doc #96. In addition to amending the claims for elder abuse and wrongful death and removing John Sutton from the suit, plaintiffs added seven new claims — for negligence, intentional infliction of emotional distress against Rose (IIED), fraud, breach of contract, violation of California Penal Code § 368, violation of California Business Professional Code § 17200 and negligent infliction of emotional distress against plaintiffs personally (NIED) — and added new defendants Margaret Conners and Does 1 to 100. Id. The factual allegations against Holz are slightly expanded, but are not appreciably more detailed than in the original complaint. In addition, the FAC names as the sole plaintiff "Letitia Rose, Deceased, by and through her successors in interest, Gail Sutton Danielle Sutton." Id.
After defendants filed the instant motion to strike, the parties stipulated to a three-month extension of the discovery cut-off, to January 8, 2008, which the court approved. Doc # 116.
Then, shortly after Holz filed his reply brief herein and before the noticed hearing date, plaintiffs' counsel, who first appeared in this matter on July 25, 2007, moved to withdraw from their representation of plaintiffs on the ground that "[t]he relationship has become acrimonious to the point where it would be best if plaintiffs sought other counsel." Doc ## 122-26. On October 9, 2007, the court granted the motion to withdraw. Doc # 127. Plaintiffs are once again proceeding pro se.
II
When an answer to a complaint has already been served, FRCP 15(a) requires a party to obtain leave of court or written consent of the adverse party before amending the complaint. "In general, if an amendment that cannot be made as of right is served without obtaining the court's leave or the opposing party's consent, it is without legal effect and any new matter it contains will not be considered unless the amendment is resubmitted for the court's approval." Alan Wright, Arthur R Miller, Mary Kay Kane, 6 Federal Practice Procedure: Civil 2d 1484 (West 2007).
III
Holz contends that plaintiffs' FAC should be stricken since plaintiffs did not obtain leave of court as required by FRCP 15(a). Doc #113. Victorian has joined Holz's motion to strike on the same grounds as asserted by Holz. Doc #115.
Plaintiffs argue that the court granted them leave to amend through its July 16, 2007 scheduling order (Doc #118), specifically asserting that the court ordered plaintiffs to amend their complaint but did not impose any restrictions on the amendment other than directing them to remove John Sutton from the complaint. Plaintiffs also assert that Victorian provided written consent allowing the FAC in the form of a letter addressed to both the court and plaintiffs stating that Victorian agreed to answer the complaint if plaintiffs amended their complaint (see Doc #81).
In addition to opposing the motion to strike, plaintiffs request leave to amend in the alternative.
The court agrees with the moving parties that plaintiffs did not obtain leave of court or written consent of the adverse party as required by FRCP 15(a) before filing their amended complaint. First, the court's scheduling order of July 16, 2007 did not grant plaintiffs carte blanche to add new claims and parties. Rather, the July 16, 2007 order instructed plaintiffs to amend their complaint to comply with the April 18, 2007 order which specifically concerned: (1) the dismissal of defendant Foote from the case; (2) the dismissal of all claims against defendants Sokotowski and Bishop; (3) the dismissal of all claims against defendant Sydes; (4) the dismissal of plaintiff John Sutton from the case and (5) allowing Danielle Sutton to remain a plaintiff in the case only asto the claim for elder abuse. Second, the court does not read the Ginsburg letter as providing written consent to plaintiffs on behalf of Victorian to amend the complaint to add many new claims to the matter, but rather to amend to comply with the April 18, 2007 order.
Because plaintiffs did not obtain leave to amend or written consent of the adverse party before filing their amended complaint containing additional claims and defendants, the motion to strike the amended pleading is GRANTED.
IV
The court now turns to plaintiffs' request for leave to amend. Defendant Holz's reply brief sets forth detailed arguments in opposition to the proposed amendments (Doc # 121); the court treats the reply brief as an opposition to the motion to amend. Because Victorian did not submit a reply brief, the court will limit its discussion to the points advanced by Holz.
Holz first contends that plaintiffs' fourth cause of action for intentional infliction of emotional distress (IIED) is unavailable to plaintiffs because emotional distress damages fall within the definition of pain and suffering damages in California's survivorship statute, California Code of Civil Procedure section 377.34, which excludes damages for pain, suffering or disfigurement from damages recoverable. Holz correctly cites Armbruster v Monument 3: Realty Fund VIII Ltd, 963 F Supp 862 (N D Cal 1997) (Williams, J) for the proposition that emotional distress damages were held to be encompassed within non-recoverable pain and suffering damages in an earlier, similar version of the statute.
Holz next asserts that plaintiffs' fifth cause of action for fraud is directed at Victorian and does not allege any facts purporting to establish fraudulent misrepresentation or fraudulent concealment against Holz. The court's review of the FAC is in accord.
Holz next contends the plaintiffs' sixth cause of action for breach of contract appears to be directed at Victorian Care Homes and not at Holz. Holz argues that (1) plaintiffs have not alleged any facts establishing that Holz entered into a written contract with Rose promising a particular outcome of medical care as is required to state a claim for breach of contract in the context of a physician-patient relationship; and (2) the pleadings do not set forth any contract terms to support plaintiffs claim for breach of contract against Holz.
Holz next argues that plaintiffs do not have standing to assert their seventh cause of action for violation of California Penal Code section 368, a criminal statute providing for criminal penalties for elder abuse. Holz asserts that the section 368 does not provide for a private right of action; the court's review of Penal Code section 368 is in accord.
Further, Holz contends that plaintiffs' eighth cause of action for unfair business practices does not pertain to him because it contains no factual allegations relevant to him. In addition, Holz contends that the 2004 amendment to California Business and Professions Code section 17200 et seq introduced standing criteria that plaintiffs cannot satisfy, i e, injury in fact and lost money or property as a result of such unfair competition. Cal Bus Prof Code § 17204. Indeed, plaintiffs do not, and almost certainly cannot, allege that they entered into a professional, business or commercial relationship with either Victorian or Holz. Holz also asserts without citation that the unfair business practice claim cannot survive Roses death; if true, this would bar an unfair business practices suit in its entirety.
Holz correctly asserts, citing Thing v LaChusa, 48 Cal 3d 644, 667-68 (1989), that plaintiffs' ninth cause of action for NIED is fatally flawed since plaintiffs have not alleged and cannot allege one fact essential to maintaining such an action: that they were present at the scene of the injury-producing event at the time of its occurrence. In fact, plaintiffs admit in the FAC that they lived in New York and that they did not visit or have any contact with Mrs Rose, Doc # 96, and therefore could not have been present at the scene of the injury-producing event. The court further notes that the caption and introductory paragraphs of the FAC in no way indicate that the complaint contains any claims on plaintiffs' own behalf, a fact inconsistent with the inclusion of a NIED claim.
Given the obvious flaws in the FAC and that the attorneys who drafted it on behalf of plaintiffs are no longer involved in the case, the court concludes that it would be contrary to the interests of efficiency and fairness in the administration of justice to allow the FAC to be filed.
The motion to amend is DENIED. Plaintiffs may serve and file, within thirty (30) days of the date of this order, an amended pleading that comports with the April 18, 2007 order. Any amendment beyond the scope of the amendments permitted by that order may only be made by motion or by stipulation in accordance with FRCP 15(a).
The court notes that a hearing was noticed on these motions at which defendants appeared by their counsel and at which plaintiff Gail Sutton appeared by telephone. Various scheduling and discovery matters were discussed, but the telephone connection to Ms Sutton was lost before the court turned to the instant motion. The court therefore took the matter under submission without oral argument. The case management and discovery matters discussed will be the subject of a separate order.
IT IS SO ORDERED.