Sergio Ramirez v. County of San Bernardino , 806 F.3d 1002 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO CASILLAS RAMIREZ, No. 13-56602
Plaintiff-Appellant,
D.C. No.
v. 5:13-cv-00573-
JFW-SP
COUNTY OF SAN BERNARDINO, a
political subdivision; ROD HOOPS,
Sheriff; WILLIAM CHAMPIN, OPINION
Sheriff’s Deputy; D. PATTON,
Sheriff’s Deputy; and EDWARD
FINNERAN, Sheriff’s Deputy,
Defendants-Appellees,
and
JIM ORR, Private Investigator;
RECORDING INDUSTRY ASSOCIATION
OF AMERICA,
Defendants.
Appeal from the United States District Court
for the Central District of California
John Walter, District Judge, Presiding
Argued and Submitted
June 5, 2015—Pasadena, California
Filed November 23, 2015
2 RAMIREZ V. CTY. OF SAN BERNARDINO
Before: Jay S. Bybee and Carlos T. Bea, Circuit Judges,
and Elizabeth E. Foote,* District Judge.
Opinion by Judge Foote
SUMMARY**
Civil Procedure
The panel reversed the district court’s dismissal of a civil
rights complaint and remanded for further proceedings.
The panel held that plaintiff was not required, pursuant to
Federal Rule of Civil Procedure 15(a), to seek leave of court
before filing his Second Amended Complaint. The panel held
that Rule 15(a) does not impose any particular timing
mechanism governing the order in which amendments must
be made. Because plaintiff’s First Amended Complaint, filed
with consent of the opposing party, complied with Rule
15(a)(2) as an “other amendment,” plaintiff was permitted to
file a timely Second Amended Complaint “as a matter of
course” under Rule 15(a)(1), without seeking leave of court.
Accordingly, the panel reversed the district court’s refusal to
recognize the Second Amended Complaint. Because the
timely filed Second Amended Complaint mooted the pending
motion to dismiss, the panel reversed the district court’s grant
*
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RAMIREZ V. CTY. OF SAN BERNARDINO 3
of defendants’ motion to dismiss the First Amended
Complaint and the resulting dismissal of the plaintiff’s case.
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.
OPINION
FOOTE, District Judge:
Plaintiff-Appellant, Sergio Ramirez, appeals the district
court’s dismissal of his civil rights complaint and the
subsequent denial of his motion to reconsider that dismissal.
In this appeal, we consider 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. This inquiry demands that we carefully scrutinize
Rule 15(a)’s text to discern whether it imposes any particular
timing mechanism governing the order in which amendments
must be made. Because we find that Rule 15(a) does not
impose any such timing mechanism, we hold that the Plaintiff
was permitted to file his Second Amended Complaint “as a
matter of course,” without seeking leave of court.
Accordingly, we reverse the judgment of the district court
below.
4 RAMIREZ V. CTY. OF SAN BERNARDINO
I.
This civil rights case arises from an incident in which San
Bernardino Sheriff’s deputies stopped the Plaintiff in his
driveway whereupon they allegedly beat, tased, and detained
him despite his compliance with their commands. The
Plaintiff asserts that he was detained for fifteen days without
being arraigned or brought to court and that he was
subsequently transferred to two different immigration
detention centers, where he endured additional suffering
before being released on bail. The merits of the case and the
Plaintiff’s allegations against the Defendants are not at issue
in this appeal, however. Rather, we focus on an intriguing
confluence of procedural mechanisms that resulted in the
district court’s action below.
In December 2012, the Plaintiff filed suit in California
state court against the County of San Bernardino and other
individuals, chiefly claiming a violation of his civil rights.
On April 29, 2013, after removal of the case to federal court,
the Plaintiff and the Defendants stipulated to the dismissal of
certain Defendants and agreed that the Plaintiff could amend
his complaint within twenty days. The parties submitted the
stipulation to the district court for its approval. The district
court shortened the Plaintiff’s deadline to file an amended
complaint from twenty days to ten days, but signed the order.
Within ten days, as contemplated by the stipulation and order,
the Plaintiff filed his First Amended Complaint, alleging civil
rights violations, battery, false imprisonment, invasion of
privacy, negligence, intentional infliction of emotional
distress, and violations of Sections 51.7 and 52.1 of the
California Unruh Civil Rights Act.
RAMIREZ V. CTY. OF SAN BERNARDINO 5
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), and also moved for a more
definite statement, pursuant to Rule 12(e). The motion was
calendared for hearing on June 24, 2013. Pursuant to Central
District of California Local Rule 7-9, the Plaintiff was
required to file an opposition to the Defendants’ motion no
later than twenty-one days before the hearing date. If the
Plaintiff intended not to oppose the motion, Local Rule 7-9
mandated that he file a written statement confirming he
would not oppose the motion. Although the Plaintiff’s
opposition or statement of non-opposition was due to the
court by June 3, 2013, he failed to submit any response to the
motion. Rather, on June 12, 2013, he 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. Consequently, the district court granted the
motion to dismiss, relying upon Local Rule 7-12, which
provides that “[t]he failure to file any required document, or
the failure to file it within the deadline, may be deemed
consent to the granting or denial of the motion . . . .” Thus,
without considering the merits of the Plaintiff’s First
Amended Complaint, the district court deemed the Plaintiff’s
silence as his consent to the granting of the Defendants’
motion to dismiss. The district court dismissed the First
Amended Complaint, without leave to amend, as to all
Defendants, including two nonmoving Defendants, and
dismissed the action entirely.
6 RAMIREZ V. CTY. OF SAN BERNARDINO
Nearly one month later, the Plaintiff filed a motion for
reconsideration under Rules 59(e) and 60(b). There, he
submitted that the Second Amended Complaint was
appropriately filed as an amended complaint
filed of course under Federal Rule of Civil
Procedure 15(a)(1), and properly superseded
the First Amended Complaint, making the
Motion to Dismiss, filed May 22, 2013, moot,
and that a newly decided Federal case and a
newly decided State case would bar granting
a Motion to Dismiss without leave to amend.
In the alternative, Plaintiff attempted to file
the Second Amended Complaint based on the
fact that the Plaintiff previously obtained
leave to file the First Amended Complaint,
and still believed that he still had the right to
file an amended complaint filed of course, but
through carelessness, attempted to file the
Second Amended Complaint anyway.
The district court denied the motion for reconsideration,
explaining that the Plaintiff was not entitled to file a Second
Amended Complaint without seeking leave of court, as he
had already exhausted his one matter of course amendment
when he filed the First Amended Complaint. The court
explained:
Based on the stipulation of the parties, the
Court entered an order on May 1, 2013 that
had been lodged by the parties dismissing
those defendants [in the original complaint]
and setting a deadline for the filing of an
amended complaint. Although the May 1,
RAMIREZ V. CTY. OF SAN BERNARDINO 7
2013 Order set a deadline by which Plaintiff
had to file a First Amended Complaint, the
stipulation submitted by the parties did not
seek, and the Court did not grant, Plaintiff
leave to file his First Amended Complaint.
Thus, Plaintiff’s First Amended Complaint
filed on May 9, 2013 constituted his one “as a
matter of course” filing of an amended
complaint. In addition, even if the May 1,
2013 Order is construed as granting Plaintiff
leave to amend his original Complaint,
Plaintiff was still not entitled to file his
Second Amended Complaint without seeking
leave of the Court because he had waived his
right to file an amended complaint “as a
matter of course.” . . . Therefore, the Court
properly rejected the Second Amended
Complaint because Plaintiff failed to seek
leave of the Court to file it.
The district court further reasoned that the Defendants’
motion to dismiss was properly granted under the Local Rules
because the Plaintiff failed to file an opposition, which was
deemed consent to the granting of the motion. The court
found that vacating the dismissal of the case would prejudice
the Defendants who would be required to devote additional
time and resources to more litigation; that prejudice would be
“compounded by the fact that granting Plaintiff’s Motion
would simply reward Plaintiff for his repeated violations of
the Federal Rules of Civil Procedure and the Local Rules
while the County Defendants incurred additional unnecessary
expenses in defending this action.” For those reasons, the
8 RAMIREZ V. CTY. OF SAN BERNARDINO
district court concluded that the Plaintiff was not entitled to
relief under Rule 60(b) and denied the motion.1
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. The
district court’s rejection of the Second Amended Complaint,
pursuant to its interpretation of Rule 15, will be reviewed de
novo. See Cal. Scents v. Surco Prods., Inc., 406 F.3d 1102,
1105 (9th Cir. 2005) (“This court reviews de novo a district
court’s interpretation of the Federal Rules of Civil
Procedure.”).
III.
The Plaintiff’s chief complaint on appeal is that Rule
15(a) is ambiguous and that under the Rule, it is not clear
whether he was required to seek leave of court to file his
Second Amended Complaint. After a thorough examination
of the Rule, we hold that he was not.
Rule 15(a) provides:
(1) Amending as a Matter of Course. A
party may amend its pleading once as a matter
of course within:
(A) 21 days after serving it, or
1
As we reverse this case on the basis of Rule 15, we do not reach the
arguments advanced on appeal regarding the other issues raised in the
Plaintiff’s motion for reconsideration.
RAMIREZ V. CTY. OF SAN BERNARDINO 9
(B) if the pleading is one to which a
responsive pleading is required, 21 days
after service of a responsive pleading or
21 days after service of a motion under
Rule 12(b), (e), or (f), whichever is
earlier.
(2) Other Amendments. In all other cases, a
party may amend its pleading only with the
opposing party's written consent or the court's
leave. The court should freely give leave
when justice so requires.
Fed. R. Civ. P. 15(a).2 The Plaintiff contends the district
court erred in striking his Second Amended Complaint and
should have allowed it to be filed. While we agree with the
Plaintiff that the district court impermissibly rejected the
Second Amended Complaint, we do not agree that Rule 15(a)
is ambiguous.
As the Supreme Court has long instructed in the context
of statutory interpretation, when the wording of a rule is clear
and unambiguous and is not capable of more than one
meaning, “the duty of interpretation does not arise, and the
rules which are to aid doubtful meanings need no discussion.”
Caminetti v. United States, 242 U.S. 470, 485 (1917); see
also Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)
2
Rule 15 was amended in 2009. Prior to that amendment, it provided
that a party could amend once as a matter of course at any time before a
responsive pleading was served, or within twenty days of service if no
responsive pleading was permitted and the case was not on the court’s trial
calendar. Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683,
688–89 (9th Cir. 2005). Otherwise, a party could amend only with leave
of court or consent of the opposing party. Id. at 689.
10 RAMIREZ V. CTY. OF SAN BERNARDINO
(“When the words of a statute are unambiguous, then, this
first canon is also the last: judicial inquiry is complete.”)
(internal quotation marks omitted). We think Rule 15 is clear
and unambiguous. Indeed, a straightforward reading of Rule
15(a) provides several distinct methods by which a plaintiff
may amend his complaint and the concomitant parameters for
doing so.
The district court erroneously held that the First Amended
Complaint was filed as a matter of course and, thus, that the
Plaintiff could not file another 15(a)(1) amendment. The
district court therefore ruled that the Plaintiff was required to
seek leave of court under 15(a)(2). In the alternative, the
district court opined that if the first amendment was filed with
leave of court under 15(a)(2), then the Plaintiff had
effectively waived his right to file a matter of course
amendment under 15(a)(1). We disagree both with the
district court’s characterization of the First Amended
Complaint as being the Plaintiff’s one matter of course
amendment, as well as its conclusion about the timing and
waiver mechanism of Rule 15(a).
Here, the Plaintiff’s first amendment was accomplished
pursuant to a stipulation between the parties. This particular
amendment complied with Rule 15(a)(2) as an “other
amendment” because it was filed with “the opposing party’s
written consent.” It is arguable that this amendment was also
filed with the “court’s leave,” which, as the district court
recognized, is an alternative method of complying with Rule
15(a)(2).3
3
The district court opined that the Plaintiff never sought leave in filing
the First Amended Complaint, and further, that it never actually granted
RAMIREZ V. CTY. OF SAN BERNARDINO 11
Thus, the second question before this court is whether the
Plaintiff was allowed to file a Second Amended Complaint as
a matter of course under 15(a)(1), or whether his First
Amended Complaint somehow exhausted his one matter of
course amendment. We hold 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.
15(a)(2)’s phrase “in all other cases” does not indicate that it
chronologically follows 15(a)(1). Indeed, it does not even
hint that there is a timing component to the operation of this
Rule. Rather, it plainly provides an alternative to the methods
available under 15(a)(1). Hence, we conclude that a plaintiff
may amend in whatever order he sees fit, provided he
complies with the respective requirements found within
15(a)(1) and 15(a)(2).
For example, as in this case, a plaintiff may file his first
amended complaint with consent from the opposing party,
which satisfies Rule 15(a)(2). He may thereafter utilize his
one matter of course amendment under 15(a)(1), so long as he
files it timely. The reverse is equally true and is more often
the case: a plaintiff may file his one matter of course
amendment under Rule 15(a)(1) and then seek consent from
opposing counsel or leave of court to file a second amended
leave. However, finding that 15(a)(2) was satisfied by the stipulation, we
need not reach a decision on that particular issue.
12 RAMIREZ V. CTY. OF SAN BERNARDINO
complaint under 15(a)(2). Either order complies with the text
of the Rule.
We base our decision on a straightforward reading of the
text of, as well as our own past remarks about, Rule 15. That
is, we previously have considered the phrase matter of course
as consonant with “as of right,” implying, if not expressly
declaring, that Rule 15 confers a “right” to amend upon
parties. See Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th
Cir. 2012) (parties have twenty-one days “to amend as of
right”); Rick-Mik Enters., Inc. v. Equilon Enters. LLC,
532 F.3d 963, 977 (9th Cir. 2008) (explaining in pre-
amendment context that until a responsive pleading is filed or
a final judgment dismissing the case is entered, the plaintiff
“had an absolute right to amend”); Shaver v. Operating
Eng’rs Local 428 Pension Trust Fund, 332 F.3d 1198, 1201
(9th Cir. 2003) (before a responsive pleading was filed and
before the case was dismissed, the plaintiffs “had an absolute
right to amend their complaint”); Sanford v. Motts, 258 F.3d
1117, 1120 (9th Cir. 2001) ([Rule 15(a)] “gives a plaintiff one
opportunity to amend as of right. The district court [erred by]
not afford[ing] this opportunity.”); Worldwide Church of
God, Inc. v. California, 623 F.2d 613, 616 (9th Cir. 1980)
(“[A] party may, as a matter of right, amend its complaint
once before the filing of a ‘responsive pleading’ or the entry
of final judgment . . . .”).
Thus, it is clear that we routinely have viewed Rule
15(a)(1)’s ability to amend as a right, one which is exhausted
or limited only by the restrictions set forth in the Rule itself.
In other words, before 2009, a plaintiff had the right to amend
his complaint up until the point in time when a responsive
pleading was filed or within twenty days after service of the
pleading if no response was permitted and the case was not
RAMIREZ V. CTY. OF SAN BERNARDINO 13
on the trial calendar. Since 2009, a plaintiff has the right to
amend within twenty-one days of service of the complaint
(15(a)(1)(A)), or within twenty-one days of service of a
responsive pleading or service of a motion under Rule 12(b),
(e), or (f), whichever comes first (15(a)(1)(B)). The
Plaintiff’s 15(a)(2) amendment, filed first in time, cannot be
construed as a waiver or exhaustion of his automatic right to
amend under 15(a)(1), so long as that amendment was timely.
Indeed, it was. The Defendants’ Rule 12(b)(6) and 12(e)
motion was filed on May 22, 2013. Rule 15(a)(1)(B) allowed
the Plaintiff to amend once within twenty-one days after
service of that motion. The Plaintiff attempted to file his
Second Amended Complaint on June 12, 2013, which was the
twenty-first day after the motion to dismiss was filed. Hence,
the amendment was timely filed.4
IV.
What outcome, then, results when a timely filed Second
Amended Complaint coincides with an unopposed motion to
dismiss? It is well-established in our circuit that an
“amended complaint supersedes the original, the latter being
treated thereafter as non-existent.” Forsyth v. Humana, Inc.,
114 F.3d 1467, 1474 (9th Cir. 1997) (internal citation
omitted), overruled on other grounds by Lacey, 693 F.3d at
927–28; see also Valadez-Lopez v. Chertoff, 656 F.3d 851,
857 (9th Cir. 2011). In other words, “the original pleading no
longer performs any function . . . .” Ferdik v. Bonzelet,
963 F.2d 1258, 1262 (9th Cir. 1992). Consequently, the
4
Because the district court rejected the Second Amended Complaint
upon filing, the issue of timeliness was never considered in the court
below, nor is it argued here.
14 RAMIREZ V. CTY. OF SAN BERNARDINO
Plaintiff’s Second Amended Complaint superseded the First
Amended Complaint, and the First Amended Complaint
ceased to exist. Because the Defendants’ motion to dismiss
targeted the Plaintiff’s First Amended Complaint, which was
no longer in effect, we conclude that the motion to dismiss
should have been deemed moot before the district court
granted it.
We understand that discrete procedural mechanisms
converged in this case— the stipulation which resulted in the
First Amended Complaint, the motion to dismiss, the
proffered Second Amended Complaint, and the lack of
opposition to the motion to dismiss. However, we find that
the district court erred in its interpretation of the interplay
between Rule 15 and Local Rule 7-12, which deems the lack
of opposition as consent to the granting of the motion. The
district court erred in permitting a local rule to trump the
governing federal rule. The application of Local Rule 7-12
resulted in the dismissal of the Plaintiff’s case and the
concomitant denial of leave to amend, all without considering
the legal import of the Second Amended Complaint. This
deprived the Plaintiff of his right to file an amended
complaint under Rule 15. If in conflict, the Local Rule must
yield to the federal rule, here Rule 15. See Colgrove v.
Battin, 413 U.S. 149, 161 n.18 (1973). We therefore reverse
the district court’s grant of the motion to dismiss.
V.
We decline to address the Plaintiff’s request to remand
this action to state court. We generally do not consider
arguments raised for the first time on appeal. See Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). We have found
no record evidence demonstrating that the Plaintiff raised this
RAMIREZ V. CTY. OF SAN BERNARDINO 15
issue before the district court, and therefore, we decline to
consider it now.
VI.
For the foregoing reasons, we conclude that the Plaintiff
was permitted to file his Second Amended Complaint as a
matter of course without seeking leave to amend.
Accordingly, we reverse the district court’s refusal to
recognize the Second Amended Complaint. Because the
timely filed Second Amended Complaint mooted the motion
to dismiss, we reverse the district court’s grant of
Defendants’ motion to dismiss the superseded First Amended
Complaint and the resulting dismissal of the Plaintiff’s case.
We remand for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.