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P.Y.M.T. v. City of Fresno

United States District Court, E.D. California

June 29, 2017

P.Y.M.T., a minor by and through her guardian ad litem Deibi Ontiveros, et. al., Plaintiffs
v.
CITY OF FRESNO, et al., Defendants

          ORDER ON DEFENDANTS' MOTION TO DISMISS AND ORDER TO SHOW CAUSE (DOC. NO. 15)

         This case arises from the shooting death of Miguel Moreno Torrez (“Torrez”) by two officers of the City of Fresno Police Department. Plaintiffs are the relatives of Torrez. Currently before the Court is Defendants' motion to dismiss. For the reasons that follow, the motion will be granted and this case will be closed.

         Procedural History

         On May 7, 2015, the case of P.Y.M.T. v. City of Fresno, 1:15-cv-0710 JAM BAM (“PYMT 1”) was filed in the Eastern District of California - Fresno Division. The PYMT 1 complaint was based on the shooting death of Torrez by members of the City of Fresno Police Department. See PYMT 1 Doc. No. 1. The plaintiffs were identified as Torrez's minor daughter PYMT, Torrez's wife Deibi Ontiveros (and guardian ad litem of PYMT), and Torrez's mother Maria Carrillo. See id. The defendants were the City of Fresno, the City of Fresno Police Department, and Doe police officers. See id. The complaint alleged that Ontiveros and Carrillo were successors in interest under California Code of Civil Procedure § 377.30. See id. The complaint included nine causes of action: excessive force in violation of 42 U.S.C. §§ 1983 and 1985, negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, assault, battery, California Government Code § 845.6, California Civil Code § 52.1, and wrongful death. See id.

         On July 17, 2015, Judge Mendez approved a stipulation between the parties. See Doc. Nos. 17, 18. The parties stipulated to the dismissal with prejudice of the negligence, negligent infliction of emotional distress, § 845.6, and § 52.1 claims, and to the dismissal with prejudice of the remaining claims by plaintiffs Deibi Ontiveros and Maria Carrillo. See id. The parties also stipulated that the complaint would be deemed to be amended to include two claims under § 1983, a claim for deprivation of familial association and a claim of denial of adequate medical care. See id. The medical care claim was brought by PYMT on behalf of Torrez, and the familial association claim was brought by PYMT, Maria Carrillo, and Torrez's father Antonio Moreno individually. See id. By necessary implication, the complaint also was amended to include Antonio Moreno as a plaintiff. See id.

         On June 11, 2016, this lawsuit was filed. See Doc. No. 1. The Complaint is based on the shooting death of Torrez by two Fresno police officers. See id. The Plaintiffs in this case are Torrez's minor daughter PYMT, Torrez's wife Deibi Ontiveros (and guardian ad litem of PYMT), Torrez's mother Maria Carrillo, and Torrez's father Antonio Moreno. See id. The Defendants are identified as the City of Fresno, the City of Fresno Police Department and police officers Colin Lewis and Jordan Wamhoff. See id. The Complaint alleges that Ontiveros, Carrillo, and Moreno are successors in interest under California Code of Civil Procedure § 377.30. See id. The Complaint alleges seven causes of action: excessive force in violation of 42 U.S.C. §§ 1983 and 1985, intentional infliction of emotional distress, assault, battery, wrongful death, deprivation of familial relations under § 1983, and denial of adequate medical care under § 1983. See id.

         On July 15, 2016, the defendants in PYMT 1 filed a motion to dismiss for failure to obey a court order and failure to participate in discovery. See Doc. No. 38. The defendants sought dismissal pursuant to Federal Rules of Civil Procedure 37(b)(2) and 41(b). See id.

         On September 19, 2016, Judge Mendez granted the motion to dismiss in PYMT 1. See Doc. No. 46. The dismissal relied on the court's inherent and statutory authority, including the Federal Rules of Civil Procedure. See id. Judge Mendez dismissed all claims “with prejudice and without leave to amend.” Id. Judgment was entered in favor of defendants on the same day and the case was closed. See Doc. No. 47. No appeals were taken in PYMT 1.

         On April 25, 2017, Defendants filed their motion to dismiss in this case. See Doc. No. 15.

         Defendants' Motion

         Defendants argue that this case should be dismissed because it is duplicative of PYMT 1. Defendants argue that Judge Mendez dismissed PYMT 1 with prejudice and without leave to amend on September 19, 2016, and Plaintiffs do not have the right to maintain two separate actions involving the same subject at the same time in the same court.

         Plaintiffs filed no opposition or response of any kind to Defendants' motion.

         Discussion

         The Ninth Circuit has held that plaintiffs “generally have no right to maintain two separate actions involving the same subject matter at the same time in the same court against the same defendant.” Adams v. California Dept. of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007). In Adams, a plaintiff was denied leave to file an amended complaint that would have added four new causes of action. See id. at 687. Amendment was denied because the deadline for filing an amended complaint had lapsed and the plaintiff was not able to show “good cause” for the delay. See id. To avoid the consequences of her delay and the district court's denial of leave to amend, the plaintiff filed a second lawsuit in the same court that included the four causes of action that she had attempted to include in the amended complaint. See id. The district court dismissed the second filed lawsuit as duplicative and proceeded to trial on the first filed lawsuit. See id.

         It is not clear to the Court that Adams is applicable. As discussed above, at the time of the dismissal in Adams, there were actually two cases that were on-going and actively being prosecuted. That is, the plaintiff in Adams was attempting to maintain two separate lawsuits. In this case, by the time Defendants filed their motion dismiss, PYMT 1 had long ended. PYMT 1 was dismissed and closed on September 19, 2016 and no appeal was taken. SeePYMT 1 Doc. Nos. 46 & 47. Thus, at the time Defendants filed this motion, Plaintiffs were not attempting to maintain two separate actions. Defendants cite no cases that have applied Adams when multiple cases were not actually being maintained at the time a dismissal motion was filed. By ...


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