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Frank Ortegoza, et al v. Peter Kho

October 23, 2012

FRANK ORTEGOZA, ET AL.,
PLAINTIFFS,
v.
PETER KHO, M.D., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER RE: ORDER TO SHOW CAUSE

Plaintiffs Frank Ortegoza and Portia Ortegoza-who have been married and have children together-jointly filed a complaint in the San Diego Superior Court that was eventually removed to this Court. Due to procedural irregularities, this action was removed under the presumption that there are two operative complaints.

On October 9, 2012, the Court issued an Order to Show Cause ("OSC") seeking an explanation why there is not a single operative complaint in this action, but also inviting Plaintiffs to illuminate the Court with any legal authority to justify allowing them to continue with two independent operative complaints in this case. Plaintiffs jointly responded to the OSC, and Defendant Peter Kho, M.D. also individually responded. This order addresses the issue presented in the OSC.

PROCEDURAL HISTORY

On April 26, 2011, Plaintiffs jointly filed a complaint in the San Diego Superior Court. Then, on August 22, 2011, Plaintiffs filed a First Amended Complaint ("FAC").

On December 6, 2011, Mr. Ortegoza and Mrs. Ortegoza separately filed a Notices of Disassociation of Counsel. On the same day, Mrs. Ortegoza filed a separate Second Amended Complaint ("SAC") that only applies to her. Based on the exhibits included in the Notice of Removal, Defendant Peter Kho, M.D. filed separate demurrers challenging both Plaintiffs' FAC, which only Mr. Ortegoza opposed, and Mrs. Ortegoza's SAC, which only she opposed.

On March 1, 2012, Defendants Mr. Kho and the United States of America removed this action to this Court. (Doc. 1.) Curiously, at the time of removal, it appears the parties were proceeding under the presumption that there are two operative complaints. Defendants even filed two answers, responding separately to Plaintiffs' FAC and Mrs. Ortegoza's SAC. (Docs. 3,

4.) A little over month later, this case was reassigned to this Court pursuant to this District's Low-Number Rule.

On October 9, 2012, Mr. Ortegoza and Mrs. Ortegoza filed separate motions for leave to filed amended complaints. On the same day, the Court ordered Plaintiffs to show cause why, in light of the general rule discussed above, there should not be a single operative complaint in this matter despite being represented by separate counsel even though Plaintiffs allege claims that are not mutually exclusive, and why one of the plaintiffs should not have filed a complaint under a new separate action. Otherwise, Plaintiffs were ordered to provide legal authority that the Court

proceed in an action that contains two operative complaints. Plaintiffs jointly filed a response to this OSC, and Dr. Kho also individually filed a response.

ANALYSIS

As a general rule, "[an] amended complaint supersedes the original, the latter being treated thereafter as nonexistent." Lacey v. Maricopa Cnty., 649 F.3d 1118, 1137 (9th Cir. 2011) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). All claims voluntarily dismissed but not repled in the amended complaint are waived. Lacey v. Maricopa Cnty., - F.3d -, 2012 WL 3711591, at *21 (9th Cir. 2012). Moreover, this general rule is stated broadly, discussing complaints generally rather than splitting hairs about complaints belonging to one plaintiff as opposed to another. See Lacey, 649 F.3d at 1137. Here, Mrs. Ortegoza voluntarily filed an amended complaint, which may have rendered the FAC non-existent.

In their response, Plaintiffs attempt to distinguish the cases that the Court cited in its OSC regarding the general rule that amended complaints supersede any prior complaints. (See Pls.' Resp. 3:9--24.) Ultimately, they conclude that this general rule does not apply here. Plaintiffs continue that Mr. Ortegoza's claim in Plaintiffs' FAC cannot be waived or superseded by Mrs. Ortegoza's subsequent SAC because he did not intentionally relinquish his right to assert the

contained in the FAC. To support that contention, Plaintiffs cite Interstate Fire & Casualty Company v. Underwriters at Lloyd's, London, 139 F.3d 1234 (9th Cir. 1998). Specifically, they rely on and quote the proposition that "[w]aiver is the intentional relinquishment of a known right, and 'must be manifested in an unequivocal manner.'" Interstate Fire & Cas., 139 F.3d at 1237. Plaintiffs also cite Katz v. Realty Equities Corporation of New York, 521 F.2d 1354 (2d Cir. 1975), and In re Equity Funding Corporation of America Securities Litigation, 416 F. Supp. 161 (C.D. Cal. 1976), to support their contention that ordering consolidation would be improper. Plaintiffs do not, ...


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