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Media Alerts - Ramirez v. County of San Bernardino - Ninth Circuit
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December 17, 2015
  Ramirez v. County of San Bernardino - Ninth Circuit
Headline: Ninth Circuit panel holds that Plaintiff was not required to seek leave of court before filing his Second Amended Complaint because rule 15 (a) does not impose any particular timing mechanism controlling the order in which amendments must be made.

Areas of Law: Civil Procedure

Issue: Whether Federal Rule of Civil Procedure 15(a) required the Plaintiff, who filed his first Amended Complaint with consent of the opposing party, to seek leave of court before filing his Second Amended Complaint.

Brief Summary: In a federal civil rights suit, Plaintiff-Appellant's claims were dismissed in district court after Plaintiff's First Amended Complaint was dismissed. The district court rejected Plaintiff's Second Amended Complaint because Plaintiff had not sought leave of court. On appeal, the Ninth Circuit held that Rule 15 does not require an order of performance or timing provision. Thus, Plaintiff's First Amended Complaint, executed by means of stipulation of the parties, complied with Rule 15(a)(2) as an "other amendment." Because the timely filed Second Amended Complaint mooted the pending motion to dismiss, the panel reversed the district court's grant of defendants' motion to dismiss the First Amended Complaint and the resulting dismissal of Plaintiff's case.

Significance: There is no requirement that a plaintiff exhaust the matter of course amendment under 15(a)(1) before an amendment is made under 15(a)(2), nor does it state the ability to amend under 15(a)(1) is exhausted or waived once a 15(a)(2) amendment is made. A plaintiff may amend in whatever order he sees fit, provided that he or she complies with the requirements of 15(a)(1) and 15(a)(2), respectively.

Extended Summary: Plaintiff-Appellant, Sergio Ramirez was stopped in his driveway by Defendant-Appellee, a police officer, at which point Plaintiff was allegedly beaten, tased and detained. Plaintiff filed suit in December 2012 against the County of San Bernardino and other individuals, claiming various civil rights violations. On April 29, 2013, after removal of the case to federal court, Plaintiff and Defendant stipulated to dismissal of various Defendants and the parties agreed that Plaintiff could amend his complaint within twenty days. The district court shortened this period to ten days, but signed the order. Plaintiff filed his First Amended Complaint within ten days.

On May 22, 2013, the Defendants filed a motion to dismiss the First Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion was calendared for hearing. Pursuant to Central District of California Local Rule 7-9, Plaintiff was required to file an opposition, or notice of intention not to oppose, Defendants motion no later than twenty-one days before the hearing date.

Plaintiff failed to submit any response to the motion by the deadline of June 3, 2013. Instead, on June 12, 2013, Plaintiff attempted to file a Second Amended Complaint. This filing was rejected on June 14, 2013 because leave of court had neither been sought nor granted.

By June 19, the Defendants' motion to dismiss was still unopposed. Relying on Local Rule 7-12, the district court deemed Plaintiff's failure to file any documents as his consent to the granting of the motion to dismiss. The district court dismissed the First Amended Complaint, without leave to amend, and dismissed the action entirely.

Plaintiff's chief complaint on appeal was that Federal Rule of Civil Procedure 15(a) was ambiguous and that under the Rule, it was not clear whether he was required to seek leave of court to file his Second Amended Complaint. While the panel agreed with the Plaintiff "the district court impermissibly rejected the Second Amended Complaint," it did not agree that Rule 15(a) is ambiguous.

The panel held "that Rule 15 provides different ways to amend a complaint, and these ways are not mutually exclusive. Rule 15 is organized substantively, not chronologically. It does not prescribe any particular sequence for the exercise of its provisions. That is, it does not mandate that the matter of course amendment under 15(a)(1) be exhausted before an amendment may be made under 15(a)(2), nor does it state that the ability to amend under 15(a)(1) is exhausted or waived once a 15(a)(2) amendment is made." Because Plaintiff's first amendment was accomplished pursuant to a stipulation between the parties, Rule 15(a)(2) was satisfied because it was filed with "the opposing party's written consent." The panel then ruled that amendment under Rule 15(a)(2) did not preclude Plaintiff from amending his complaint under Rule 15(a)(1). Plaintiff could amend in whatever order he saw fit, provided that he complied with the respective requirements found within 15(a)(1) and 15 (a)(2). The panel further ruled that the Plaintiff's Second Amended Complaint superseded the First Amended Complaint, which therefore ceased to exist, and, "ecause the Defendants' motion to dismiss targeted the Plaintiff's First Amended Complaint, which was no longer in effect," the panel concluded "that the motion to dismiss should have been deemed moot before the district court granted it." Reversed and Remanded.

To read full opinion, please visit:

Panel: Elizabeth E. Foote, United States District Judge for the Western District of Louisiana, sitting by designation, Jay S. Bybee and Carlos T. Bea, Circuit Judges

Argument Date: June 5, 2015

Date of Issued Opinion: November 23, 2015

Docket Number: 13-56602

Case Alert Author: Andrew Mckeown

Counsel: Moises A. Aviles (argued), Aviles & Associates, San Bernardino, California, for Plaintiff-Appellant; Dawn M. Flores-Oster (argued), Lewis Brisbois Bisgaard & Smith, Los Angeles, California, for Defendants-Appellees.

Author of Majority Opinion: Judge Foote

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 12/17/2015 07:38 PM     9th Circuit  

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