United States District Court, E.D. California
P.Y.M.T., a minor by and through her guardian ad litem Deibi Ontiveros, et. al., Plaintiffs
CITY OF FRESNO, et al., Defendants
ORDER ON DEFENDANTS' MOTION TO DISMISS AND ORDER
TO SHOW CAUSE (DOC. NO. 15)
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.
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.
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.
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
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.
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.
April 25, 2017, Defendants filed their motion to dismiss in
this case. See Doc. No. 15.
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.
filed no opposition or response of any kind to
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.
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 ...