UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
April 25, 2011
KULWANT LASHER, USA EXPRESS CAB LLC, PLAINTIFFS,
CITY OF SANTA CLARA,
The opinion of the court was delivered by: Lucy H. Koh United States District Judge
United States District Court For the Northern District of California
ORDER DENYING DEFENDANT'S MOTION TO DISMISS AS MOOT
Before the Court is Defendant's motion to dismiss. See Dkt. #14. Instead of filing an opposition to that motion, however, Plaintiffs filed an untimely Amended Complaint. See Dkt. 18 #21. The Court deems Defendant's motion appropriate for resolution without oral argument and 19 vacates the April 28, 2011 motion hearing. See Civ. L.R. 7-1(b). The April 28, 2011 case 20 management conference is continued to Wednesday, July 20, 2011 at 2:00 p.m. For the following 21 reasons, the Court DENIES Defendant's motion to dismiss as moot, and accepts the filing of Plaintiffs' Amended Complaint.
Plaintiff Kulwant Lasher, at the time proceeding pro se, filed a
complaint on behalf of
himself and his company USA Express Cab LLC on September 16, 2010.
See Compl. [dkt. #1]. In 26 that initial complaint, Plaintiffs brought
suit under 42 U.S.C. § 1983, alleging that the City of Santa 27
Clara "unlawfully revoked, canceled their taxicab licenses, and permits on September 16, 2008." 28
Id. at ¶ 1. Plaintiffs also generally alleged that "[b]y reason of the
defendants' conduct, plaintiffs
were deprived of rights, privileges, and immunities secured to them."
Id. at ¶ 4. Plaintiffs, 2 however, did not identify a particular
"right," "privilege," or "immunity' that was deprived. 3
claim, and noticed that motion for a hearing date of April 28, 2011.
Defendants argued that: (1)
Plaintiffs did not identify a specific basis for their §1983 claim;
(2) Plaintiffs' complaint is barred 6 by his felony bribery conviction
pursuant to the Supreme Court's decision in Heck v. Humphrey, 7
512 U.S. 477 (1994)*fn1 ; and (3) Plaintiff USA Express
Cab LLC should be dismissed because 8 business entities may not
proceed without representation. See Def.'s Mot. to Dismiss at 2-4. 9
On March 1, 2011, Defendant filed a motion to dismiss the complaint for failure to state a Pursuant to the District's Civil Local Rules, Plaintiffs' opposition to the motion was due on April 7, 2011 (three weeks prior to the motion hearing date). See Civ. L.R. 7-3. Instead of filing 11 an opposition, however, Plaintiffs, now acting vi a counsel, filed a first amended complaint ("FAC") on April 7, 2011. See Dkt. #21. In the FAC, Plaintiffs do identify a specific basis for 13 their §1983 claim. Specifically, Plaintiffs allege Defendant violated their right to due process of 14 law by permanently revoking Plaintiffs' permit to operate the taxicab business without inspecting 15
Plaintiffs' cabs. FAC ¶¶ 7-8. Plaintiffs further allege that their constitutional right to due process 16 of law was violated as a result of the official customs, practices, and policies of Defendant. Id. 17
Also on April 7, 2011, Plaintiffs filed a "Response" to the motion to dismiss, stating that the filing 18 of the FAC pursuant to Federal Rule of Civil Procedure 15(a) renders the motion to dismiss moot. 19
See Dkt. 22.
unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the 23 conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a 24 federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under 25 § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of 26 his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court 27 determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the 28 absence of some other bar to the suit." Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (bolded for emphasis).
ORDER DENYING MOTION TO DISMISS AS MOOT
Rule 15(b) states: "The court should freely give leave [to amend a pleading] when justice so 6 requires." See Fed. R. Civ. P. 15(b). 7
Rule 15(a). Despite the untimely filing of the FAC, the Court will accept the FAC in light of the retention of counsel. See Shirley v. Wachovia Mortg. FSB, 2010 U.S. Dist. LEXIS 133248, *7 (N.D. Cal. Dec. 2, 2010) ("Despite the untimely filing of Plaintiffs' Amended Complaint, the Court 13 will accept its filing for practical reasons."). Because the FAC supersedes the original complaint, 14 the Court denies Defendant's motion to dismiss the original complaint as moot.*fn2
future missed deadlines or violations of court rules.
19 dismiss the original complaint as moot. Plaintiffs' FAC, filed on April 7, 2011, supersedes the 20 original complaint. Within twenty-one (21) days of this Order, Defendant shall either file its 21 answer or a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure. The April 22 , 2011 motion hearing is VACATED. The April 28, 2011 case management conference is 23 continued to Wednesday, July 20, 2011 at 2:00 p.m. In the event Defendant files a motion to 24 25
26 some deficiencies of the original complaint, "Plaintiffs are unable to side-step the substantive bar to this lawsuit by virtue of Heck v. Humphrey." See Def.'s Reply at 1. It is not clear to the Court 27 at this point, however, exactly how a judgment in favor of Plaintiffs "would necessarily imply the invalidity" of Plaintiff Lasher's bribery conviction. In light of the acceptance of the FAC (which 28 appears to be premised upon a procedural due process claim), Defendants may raise and clarify the Heck bar argument, and any other argument for dismissal, with respect to the now operative FAC.
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, a party may file an amended 12(b) motion. See Fed. R. Civ. P. 15(a). While Rule 15(a) provides for a twenty-one day deadline, 5 Here, Defendant's motion to dismiss the original complaint was filed on March 1, 2011, but Plaintiffs did not file the FAC until April 7, 2011, which is beyond the twenty-one day deadline of 9 Rule 15(b)'s guidance to freely give leave when justice so requires and in light of Plaintiffs' recent
The parties, now both represented by counsel, should note that the Court will not tolerate
For the foregoing reasons, the Court DENIES Defendant City of Santa
Clara's motion to
dismiss the FAC, the Court will move the case management conference to
the same date as the 2 motion hearing. 3
IT IS SO ORDERED.