Roberts v. Gallagher
| Decision Date | 16 May 2023 |
| Docket Number | CV-21-08255-PCT-DJH |
| Parties | William Russell Roberts, et al., Plaintiffs, v. Lee Anne Gallagher, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Defendant Volkswagen Group of America, Inc. (“Volkswagen”) has filed a Motion to Strike or Motion to Dismiss (Doc. 144) pro se Plaintiffs William Russell Roberts (“Roberts”) and Tracy Lee Donnay (“Donnay”) (collectively “Plaintiffs”) Second Amended Complaint (“SAC”) (Doc. 137).[1] Defendant Lee Anne Gallagher (“Gallagher”)[2] also filed a Motion to Strike or Dismiss (Doc. 145) Plaintiffs' SAC.[3]Plaintiff Roberts filed Responses in Opposition to both Motions. (Docs. 152 153). Defendants filed their Replies (Docs. 154, 155). For the following reasons, the Court will grant Defendants' Motion to Strike and Dismiss.
On April 26, 2017, Plaintiff was driving a rented 2016 Volkswagen Jetta on State Road 64 in Coconino County, Arizona, and had a head-on collision with Gallagher. (Doc. 60 at 3). Gallagher's vehicle was a rental car from Enterprise rental company. (Id.) Plaintiff was transported from the scene of the collision to Flagstaff Medical Center (operated by Defendant Northern Arizona Healthcare (“NAH”)), where he was admitted to intensive care for contusions on his heart and elevated blood pressure. (Id.)
A year later, on March 10, 2018, in his home state of Wisconsin, Plaintiff suffered cardiac arrest from blockages in his heart. (Id.) Plaintiff claims the blockages were due to the airbag of his Volkswagen rental car deploying violently and improperly. (Id.) Plaintiff claims Volkswagen should have known that the vehicle's airbags were problematic and alleges product liability and negligence. (Id.) Plaintiff also brings claims against Gallagher and NAH. (Id.)
On April 26, 2019, Plaintiff filed his first action (the “2019 Case”) in the Western District of Wisconsin (the “Wisconsin court”) against Volkswagen and thirteen other defendants. (Doc. 57 at 2). On September 17, 2019, the defendants moved to dismiss Plaintiff's lawsuit on several grounds, including lack of subject matter jurisdiction, personal jurisdiction, venue, improper service, and failure to state a claim upon which relief can be granted. (Id.)
On April 6, 2020, while the 2019 Case was still pending, Plaintiff filed his current claim in the Wisconsin court (the “2020 Case”) (Doc. 1). Volkswagen moved to dismiss the Complaint in the new action because it was duplicative of the 2019 Case and because, just like the first lawsuit, the Complaint had not been properly served. (Doc. 47). Volkswagen also argued that the Complaint was barred by Arizona's two-year statute of limitations for personal injury claims. (Id.) Another defendant in the matter, Liberty Mutual Insurance, argued for dismissal based on improper venue because the facts of the claim arose in Arizona. (Doc. 15).
In December 2020, the Wisconsin court dismissed both cases without prejudice for lack of subject matter jurisdiction because Plaintiff did not plead sufficient allegations to establish complete diversity of citizenship. (Doc. 57). The court, however, gave Plaintiff the opportunity to amend his Complaint in the 2020 Case to allege sufficient facts to determine diversity of citizenship. (Id.) Plaintiff timely filed his Amended Complaint. (Doc. 58).
On November 17, 2021, the Wisconsin court found Plaintiff's Amended Complaint sufficiently alleged each defendant's citizenship and satisfied subject matter jurisdiction. (Doc. 60 at 3). The court then considered the Defendants' motions to dismiss and transferred this matter to the District of Arizona, “warts and all,” as the proper venue for a claim arising in Arizona. (Id.)
On November 19, 2021, this Court received notice of the transfer from the Wisconsin court. (Doc. 62). Several of the defendants then refiled Motions to Dismiss on various grounds, including that Plaintiff's claims were barred by Arizona's personal injury statute of limitations.
In its July 12, 2022, Order, this Court denied Volkswagen, Gallagher, and NAH's Motions to Dismiss because it found Plaintiff's timely filed original 2020 Complaint equitably tolled the statute of limitations for his personal injury claims.[5] (Doc. 120 at 13). The Court also granted Plaintiff a short extension under Federal Rule of Civil Procedure 4(m) to serve Volkswagen. Plaintiff did so on July 15, 2022, and Volkswagen filed its Answer on July 27, 2022. (Docs. 122; 124).
On November 27, 2022, Plaintiffs filed their SAC (Doc. 137), adding Plaintiff Donnay as a plaintiff and Nina J. Foppe, Gallagher's spouse, as a defendant. (Id. at 1).
The following day, the Court ordered Plaintiffs to file a notice in compliance with Local Rule of Civil Procedure 15.1(b), which requires that the amending party file “a separate notice of filing the amended pleading” and attach a copy of the amended pleading thereto on or before December 2, 2022.[6] (Doc. 138); LRCiv 15.1(b). The Court noted Plaintiffs' failure to comply would result in the SAC being stricken. (Id.)
Plaintiff Roberts filed his notice of compliance on December 2, 2020, claiming he had served a copy of his SAC and Attachments on the parties. (Doc. 139-2 at 1).
Defendants now seek to strike Plaintiffs' SAC, including the addition of Plaintiff Donnay as a party and all allegations pertaining to Donnay because Plaintiffs failed to comply with Federal Rule of Civil Procedure 15(a)(2). (Docs. 144; 145). Alternatively, Defendants move to dismiss Plaintiffs' SAC under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing that Donnay's associated claims are time-barred by Arizona's personal injury statute of limitations. (Id.)
The Court will address each Motion in turn.
In their Motions to Strike, Defendants argue Plaintiffs' SAC does not comply with Federal Rules of Civil Procedure 15(a)(1) or (a)(2) (“Rule 15(a)(1) and (a)(2)”).[7] (Docs. 144, 145). Defendants thus ask the Court to strike Plaintiffs' SAC. (Id.) Plaintiff Roberts says Volkswagen knew he would be filing a SAC because he informed Volkswagen at the September 28, 2022, hearing. (Doc. 152 at 4). Plaintiff Donnay did not respond to Defendants' Motion and the time to do so has passed. See LRCiv. 7.2(c) ().
At the outset, the Court deems Plaintiff Donnay's lack of response as consent to granting Defendants' Motion to Strike. See LRCiv 7.2(i) (); Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988) (). Even more, regardless of Plaintiff Roberts' contention, Plaintiffs plainly failed to comply with either Rule 15(a)(1) or (a)(2).
Rule (a)(1) permits Plaintiff Roberts to amend his Complaint once as a matter of course within 21 days of the filing of Volkswagen's Answer. Fed.R.Civ.P. 15(a)(1). Volkswagen answered Plaintiff Roberts' Complaint on July 27, 2022. (Doc. 124). This means Plaintiff Roberts would have needed to amend his Complaint by August 17th as a matter of course. Id. Alternatively, if Plaintiff Roberts wished to file an amended complaint outside that timeframe, Rule 15(a)(2) requires either leave of court or the written consent of the opposing party. Fed.R.Civ.P. 15(a)(2).
Here, Plaintiff neither filed his SAC as a matter of course nor received leave of court or the written consent of the opposing parties. He filed his SAC on November 27, 2022, 102 days after the deadline for doing so, and without leave of court or the written consent of the opposing party. Accordingly, the SAC was not filed in compliance with either Rule 15(a)(1) or (a)(2).
Where a plaintiff has failed to seek leave to amend when required, such amended pleadings have no legal effect and therefore do not supersede the original complaint. See e.g., Taa v. Chase Home Finance, LLC, 2012 WL 507430 at *1 (N.D. Cal. Feb. 15, 2012) ( ) (internal citation omitted); see also Ritzer v. Gerovicap Pharm. Corp., 162 F.R.D. 642, 644 (D. Nev. 1995) ( an amended complaint filed in violation of Rule 15's provisions requiring leave of court or consent of the other party because it had no legal effect); Hardin v. Wal-Mart Stores, Inc., 813 F.Supp.2d 1167, 1181 (E.D. Cal. 2011) (); Dickey v. Davis, 231 F.Supp.3d 634, 664, (E.D. Cal. 2017) ().
In sum the SAC does not successfully supersede the Complaint because it was not filed in accordance with the requirements of Rule 15. The SAC has no legal effect and will therefore be stricken. The Amended Complaint at ...
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