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Kulwant Lasher, Usa Express Cab LLC v. City of Santa Clara

April 25, 2011

KULWANT LASHER, USA EXPRESS CAB LLC, PLAINTIFFS,
v.
CITY OF SANTA CLARA,
DEFENDANT.



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.

I.BACKGROUND

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." ...


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