Opinion
No. 2:15-cv-0887-MCE-EFB
12-01-2015
JONATHAN EARL DANNER, Plaintiff, v. COUNTY OF SAN JOAQUIN and MANUEL ANDRADE, Defendants.
MEMORANDUM AND ORDER
Plaintiff Jonathan Earl Danner ("Plaintiff") alleges several causes of action against Defendants San Joaquin County and Manuel Andrade (collectively, "Defendants") stemming from Plaintiff's alleged unlawful arrest on April 11, 2014. Defendants have filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 13. Plaintiff filed an Opposition to the Motion (ECF No. 15), and Defendants filed a Reply (ECF No. 16). For the reasons that follow, Defendants' Motion is GRANTED in part and DENIED in part.
Because oral argument would not have been of material assistance, the Court ordered this matter submitted on the briefs. See E.D. Cal. Local R. 230(g).
BACKGROUND
The following statement of facts is based entirely on the allegations in Plaintiff's Complaint (ECF No. 1).
From March 2013 to December 2013, Plaintiff employed Jonathan Jackson at Plaintiff's hauling and handyman business. The employment relationship ended when Plaintiff terminated Jackson because of his work performance. In January 2014, Jackson started a physical altercation with Plaintiff and deliberately broke the window of Plaintiff's vehicle. Another altercation between Jackson and Plaintiff occurred on April 11, 2014. The Complaint makes clear that Plaintiff and Jackson provided law enforcement with conflicting accounts of what transpired that morning.
The Complaint describes in detail both Plaintiff's and Jackson's version of events.
A. Plaintiff's Account
At approximately 5:30 a.m. on April 11, 2014, Plaintiff awoke in his home to the sound of a revving car engine. Plaintiff looked out his bedroom window and saw Jackson's friend Jorge Burns sitting in a vehicle; Plaintiff also heard Jackson shouting obscenities from the vehicle. Plaintiff walked outside, grabbed his dog, put the dog in his truck, and went back inside his house. Plaintiff was about to return outside when he heard glass shatter. Plaintiff observed Burns running away from Plaintiff's truck and observed a brick in the passenger cabin of the truck. Plaintiff's dog suffered severe injuries as a result of Burns throwing the brick through the windshield of Plaintiff's truck.
Plaintiff called 911 and pursued Burns and Jackson in his truck. San Joaquin County Sheriff Deputy Manuel Andrade ("Deputy Andrade") reported to Plaintiff's residence and took Plaintiff's statement. Deputy Andrade observed Plaintiff's dog bleeding profusely from its forehead and further noted the damage to Plaintiff's truck.
B. Jackson's Account, According to Plaintiff's Complaint
Deputy Andrade subsequently located and interviewed Jackson. Jackson admitted that he had broken Plaintiff's window during a prior confrontation with Plaintiff and stated he was paying Plaintiff for that damage. Jackson also admitted that he had encountered Plaintiff earlier in the morning of April 11, 2014. However, Jackson incorrectly stated that the encounter occurred at the Tower Mart at 147 East Lathrop Road and that Plaintiff instigated the confrontation.
Jackson further stated that after the confrontation at Tower Mart, he took Burns to work and returned home. Ten minutes after that, Plaintiff appeared in front of Jackson's residence and brandished a small gun. Plaintiff allegedly told Jackson to meet him around the corner. When Plaintiff drove around the corner, Jackson threw a rock at Plaintiff's truck and shattered its window. Plaintiff then exited his truck with the gun, and Jackson threw another rock at Plaintiff. Plaintiff responded by throwing the rock back at Jackson, retrieving a brick from the back of his truck, and throwing the brick at Jackson. Plaintiff drove away in his truck, only to return in a different vehicle. Jackson did not offer Deputy Andrade an explanation regarding the dog's injuries.
C. Plaintiff's Arrest
After hearing Jackson's account, Deputy Andrade arrested Plaintiff for making criminal threats, brandishing a firearm, and making a false police report. Plaintiff suggests Deputy Andrade's decision to arrest him and not Jackson was based on the fact that Plaintiff was convicted of battery on a police officer more than twenty years ago, a conviction for which he has since encountered "constant harassment from the police." Compl. at 9.
Plaintiff spent six days in the San Joaquin County Jail before posting bail. Although the San Joaquin County District Attorney initially charged Plaintiff with the three offenses for which he was arrested, the District Attorney dismissed the charges on September 25, 2014.
D. Plaintiff's Complaint and Defendant's Motion to Dismiss
Plaintiff's Complaint identifies five causes of action: (1) false arrest under 42 U.S.C. § 1983; (2) false arrest in violation of the California Constitution; (3) malicious prosecution; (4) intentional infliction of emotional distress; and (5) a vicarious liability claim against Defendant San Joaquin County under California Government Code section 815.2(a). Defendants seek dismissal of all five causes of action.
Contrary to Plaintiff's Opposition, there are no "allegations of excessive force" in the Complaint. Pl.'s Opp'n, ECF No. 15, at 6.
STANDARD
On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. However, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal citations and quotations omitted). A court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (quoting Twombly, 550 U.S. at 555). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain something more than "a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.")).
All further references to "Rule" or "Rules" are to the Federal Rules of Civil Procedure unless otherwise noted.
Furthermore, "Rule 8(a)(2) . . . requires a showing, rather than a blanket assertion, of entitlement to relief." Id. at 556 n.3 (internal citations and quotations omitted). Thus, "[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Id. (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. If the "plaintiffs . . . have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id. However, "[a] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. Leave to amend should be "freely given" where there is no "undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment . . . ." Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Not all of these factors merit equal weight. Rather, "the consideration of prejudice to the opposing party . . . carries the greatest weight." Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that "the complaint could not be saved by any amendment." Intri-Plex Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) ("Leave need not be granted where the amendment of the complaint . . . constitutes an exercise in futility . . . .")).
ANALYSIS
Defendants advance several arguments in their Motion to Dismiss. The Court will address each in turn.
A. California Government Code Section 945.6(a)
Defendants argue that the second, fourth, and fifth causes of action should be dismissed on the ground that Plaintiff failed to file this action within six months of receiving notice that San Joaquin County had rejected his tort claim against the County. See generally Cal. Gov't Code § 945.6(a) ("any suit brought against a public entity . . . must be commenced . . . not later than six months after the date [a letter rejecting a tort claim against the entity] is personally delivered or deposited in the mail"). Defendant argues that the County rejected Plaintiff's claim on October 23, 2014, that Plaintiff therefore should have commenced this action no later than April 23, 2015, and that Plaintiff's state law claims are untimely because he did not file his Complaint until April 24, 2015.
However, Plaintiff filed a civil cover sheet and a motion to proceed in forma pauperis on April 23, 2015. See ECF Nos. 2, 3. Although "[a] civil action is commenced by filing a complaint with the court," see Federal Rule of Civil Procedure 3 (emphasis added), Plaintiff's Opposition to the pending Motion explains that the Complaint was inadvertently separated from the documents filed on April 23, 2015, ECF No. 15 at 4. The Court, although skeptical of Plaintiff's explanation, will not dismiss the second, fourth, and fifth causes of action on the ground that Plaintiff has failed to comply with section 945.6(a). Defendants' Motion is therefore DENIED to the extent it seeks dismissal of those causes of action pursuant to section 945.6(a).
Defendants' Requests for Judicial Notice (ECF Nos. 13-2), which relate to Defendants' section 945.6(a) argument, are DENIED as moot.
A. First Cause of Action
Plaintiff's first cause of action alleges that Deputy Andrade's arrest of Plaintiff was an unreasonable seizure in violation of the Fourth Amendment to the United States Constitution. Deputy Andrade seeks dismissal of the claim on the grounds that he is entitled to qualified immunity.
The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. . . .Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (citations and internal quotation marks omitted).
The dispositive question is whether the violative nature of particular conduct is clearly established. This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition.
In the context of an unlawful arrest, an officer is entitled to qualified immunity "if he reasonably believed there to have been probable cause." Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1076 (9th Cir. 2011) (per curiam). "Framing the reasonableness question somewhat differently, the question in determining whether qualified immunity applies is whether all reasonable officers would agree that there was no probable cause in this instance." Id. at 1078.
Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested. Alternatively, this court has defined probable cause as follows: when under the totality of circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime.United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (citations and internal quotation marks omitted).
At this stage of the litigation, the Court cannot find that Deputy Andrade is entitled to qualified immunity on the unlawful arrest claim. As noted above, on Defendants' Motion to Dismiss, the Court must construe all allegations in the Complaint in the light most favorable to Plaintiff. The Complaint suggests that Deputy Andrade arrested Plaintiff solely on Jackson's account (i.e., that Plaintiff brandished a gun and threw a brick at Jackson). While Jackson's account, in isolation, could arguably lead a prudent person to conclude that there was a fair probability that Plaintiff had committed a crime, the probable cause analysis requires that the Court examine the totality of the circumstances known to Deputy Andrade.
There are several allegations in the Complaint that indicate the account Jackson provided Deputy Andrade was less than credible. Of particular relevance is the absurdity of Jackson's account—that is, that Jackson's response to Plaintiff's alleged brandishing of a gun was to throw a rock at Plaintiff's truck and that Jackson threw another a rock at Plaintiff when Plaintiff exited his truck with the gun—and that Jackson admitted having shattered the window of Plaintiff's vehicle during a prior confrontation. See also Compl. at 5 ("Deputy Andrade arrested plaintiff even though the deputy never found the gun plaintiff supposedly brandished."). Construing the allegations in the Complaint in the light most favorable to Plaintiff, Jackson's statement—the only evidence of Plaintiff's alleged criminal activity—was not believable. Deputy Andrade therefore did not have "knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe" that Plaintiff had committed an offense, and it was not reasonable for him to believe that he had probable cause to arrest Plaintiff. Deputy Andrade is therefore not entitled to qualified immunity at this stage of the litigation.
This finding renders unnecessary any discussion of Deputy Andrade's argument that the first and second causes of action should also be dismissed because Plaintiff has "fail[ed] to plead the required 'lack of probable cause' element." Defs.' Mot., ECF No. 13-1, at 12.
Accordingly, Defendants' Motion to Dismiss is DENIED to the extent it seeks dismissal of the first cause of action.
B. Second Cause of Action
Plaintiff's second cause of action alleges that Deputy Andrade's arrest of Plaintiff was an unreasonable seizure in violation of the California Constitution. Deputy Andrade seeks dismissal of the second cause of action on the grounds that it is untimely under the applicable statute of limitations and that he is entitled to statutory immunity. The Court will address each of these arguments.
1. Statute of Limitations
Deputy Andrade correctly notes that (1) under California Code of Civil Procedure section 340(c), "[a]n action for . . . false imprisonment" shall be brought within one year, (2) according to the Complaint, Deputy Andrade arrested Plaintiff on April 11, 2014, and (3) Plaintiff did not file this action until April 24, 2015. Defendants argue that because Plaintiff did not commence this suit within one year of the arrest, section 340(c) bars and the Court must dismiss Plaintiff's second cause of action.
"In California, false arrest and false imprisonment are not separate torts." George v. City of Long Beach, 973 F.2d 706, 710 (9th Cir. 1992).
Plaintiff did not even acknowledge Deputy Andrade's section 340(c) argument in his Opposition. Nevertheless, both Plaintiff and Deputy Andrade have overlooked California Government Code sections 945.3 and 352.1(a). Section 945.3 provides:
No person charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense may bring a civil action for money or damages against a peace officer or the public entity employing a peace officer based upon conduct of the peace officer relating to the offense for which the accused is charged, including an act or omission in investigating or reporting the offense or arresting or detaining the accused, while the charges against the accused are pending before a superior court.
Any applicable statute of limitations for filing and prosecuting these actions shall be tolled during the period that the charges are pending before a superior court.
Applied here, section 945.3 tolled the limitations period from the date the District Attorney filed the information against Plaintiff (April 15, 2014) to the date the District Attorney dropped the charges against Plaintiff (September 25, 2014). Moreover, under California Code of Civil Procedure section 352.1(a), the limitations period was also tolled while Plaintiff was incarcerated at the San Joaquin County Jail. See generally Elliott v. City of Union City, 25 F.3d 800 (9th Cir. 1994) (reversing the district court because the statute of limitations was tolled "commencing at the [plaintiff's] arrest and continuing through his custody"). The Complaint indicates that Plaintiff was incarcerated for six days beginning on April 11, 2014.
Thus, applying sections 845.3 and 352.1(a), the limitations period was tolled from the date that Deputy Andrade arrested Plaintiff (April 11, 2014) to the date the District Attorney dropped the charges against Plaintiff (September 25, 2014). Plaintiff therefore had until September 26, 2015 to file a complaint containing his second cause of action. Because Plaintiff filed his Complaint in April 2015—months before the expiration of the one-year limitations period—the claim is not untimely under section 340(c).
Accordingly, Defendants' Motion is DENIED to the extent that it seeks dismissal of the second cause of action on the ground it is untimely under section 340(c).
2. Statutory Immunity
Deputy Andrade also argues he is entitled to statutory immunity under California Penal Code section 847(b), which provides that "[t]here shall be no civil liability" for false arrest if the arresting officer "had reasonable cause to believe the arrest was lawful." As explained above, construing the allegations in the light most favorable to Plaintiff, Deputy Andrade did not have reasonable cause to believe the arrest was lawful. Accordingly, Defendants' Motion is DENIED to the extent that it seeks dismissal of the second cause of action on the ground that Deputy Andrade is entitled to immunity under section 847(b).
C. Third Cause of Action
Plaintiff's third cause of action is a § 1983 malicious prosecution claim against Deputy Andrade. Deputy Andrade seeks dismissal of the claim on the ground that it is inadequately pled.
"In order to prevail on a § 1983 claim of malicious prosecution, a plaintiff must show that the defendants prosecuted him with malice and without probable cause, and that they did so for the purpose of denying him equal protection or another specific constitutional right." Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (internal bracketing and quotation marks omitted). Deputy Andrade argues that Plaintiff has failed to adequately plead a malicious prosecution claim because (1) the Complaint makes clear that there was probable cause to prosecute Plaintiff and (2) Plaintiff has not alleged that Deputy Andrade improperly influenced the District Attorney to file criminal charges. The Court will address each of these arguments.
1. Probable Cause
For the same reasons the Court found that, construing the allegations in the Complaint in the light most favorable to Plaintiff, it was not reasonable for Deputy Andrade to believe that he had probable cause to arrest Plaintiff, the Court finds that there was not probable cause to prosecute Plaintiff (i.e., the charges were based entirely on Jackson's less than credible account).
2. Presumption of Prosecutorial Independence
Although malicious prosecution actions are not limited to suits against prosecutors, there is a "presumption of prosecutorial independence" that ordinarily precludes liability for individuals that participated in the investigation or filed a report that resulted in the initiation of proceedings. Awabdy, 368 F.3d at 1066, 1067. But that presumption does not bar a subsequent § 1983 claim against an individual "who improperly exerted pressure on the prosecutor, knowingly provided misinformation to him, concealed exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings." Id. at 1067. Applied here, Plaintiff's Complaint sufficiently alleges that Deputy Andrade engaged in wrongful or bad faith conduct that was actively instrumental in causing the District Attorney to file charges against Plaintiff. Specifically, the Complaint states: "Deputy Andrade knew he did not have probable cause to arrest plaintiff, but that Deputy Andrade's arrest of plaintiff was done maliciously, with the intent to harm plaintiff . . . ." Compl. at 9. Plaintiff further alleges that "Deputy Andrade's conduct was a substantial factor in causing plaintiff's harm." Id. Plaintiff also suggests that the real motivation behind Deputy Andrade's decision to arrest Plaintiff and file the inaccurate police report was his knowledge of Plaintiff's prior conviction for battery on a police officer.
Because Plaintiff has alleged that Deputy Andrade engaged in wrongful or bad faith conduct that was actively instrumental in causing the District Attorney to file charges against Plaintiff, the presumption of prosecutorial independence does not bar Plaintiff's malicious prosecution claim against Deputy Andrade. Accordingly, Defendants' Motion to Dismiss is DENIED to the extent that it seeks dismissal of the third cause of action on the ground that Plaintiff has inadequately pled a malicious prosecution claim.
D. Fourth Cause of Action
Plaintiff's fourth cause of action is an intentional infliction of emotional distress ("IIED") claim against Deputy Andrade. An IIED claim consists of the following elements:
(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.Doe v. Gangland Prods., Inc., 730 F.3d 946, 960 (9th Cir. 2013). Deputy Andrade seeks dismissal of Plaintiff's IIED claim on the ground that Plaintiff has not alleged extreme or outrageous conduct or that he suffered severe emotional distress.
The Court finds that Deputy Andrade's decision to arrest Plaintiff solely on the less than credible account of Jackson, which resulted in Plaintiff's incarceration at the San Joaquin County Jail for six days and a criminal prosecution, may amount to extreme and outrageous conduct for purposes of IIED. See Hamre v. City of Bothell, 81 F. App'x 260, 263 (9th Cir. 2003) ("[T]he district court erred in dismissing Hamre's intentional infliction of emotional distress claim by failing to recognize that being prosecuted on trumped up charges amounts to more than 'mere annoyance, inconvenience, or normal embarrassment.'").
However, the Complaint is deficient with respect to the "severe or extreme emotional distress" element. "Severe emotional distress means emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it." Kiseskey v. Carpenters' Trust for So. Cal., 144 Cal. App. 3d 222, 231 (1983) (internal quotation marks omitted). Although the Complaint alleges that "Plaintiff actually suffered emotional distress," Compl. at 9, the Court is not required to accept as true a "legal conclusion couched as a factual allegation," Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). Plaintiff has not otherwise pled emotional distress of substantial and enduring quality. Accordingly, Defendants' Motion is GRANTED to the extent that it seeks dismissal of Plaintiff's IIED claim. Because Plaintiff may be able to cure the defect, Plaintiff is granted leave to amend the claim.
E. Fifth Cause of Action
Plaintiff's fifth cause of action asserts that Defendant San Joaquin County is vicariously liable for Deputy Andrade's acts under California Government Code section 815.2(a). Section 812.2 imposes upon public entities vicarious liability for the tortious acts of their employees. See generally Robinson v. Solano Cnty., 278 F.3d 1007, 1016 (9th Cir. 2002) ("California . . . has rejected the Monell rule and imposes liability on counties under the doctrine of respondeat superior for acts of county employees").
In their Motion to Dismiss, Defendants note that the Complaint does not specify which causes of action trigger the County's vicarious liability. Defendant argues, and the Court agrees, that the County cannot be held vicariously liable for the federal causes of action (i.e., the first and third causes of action) in Plaintiff's Complaint. See generally Castro v. Cnty. of L.A., 797 F.3d 654, 670-71 (9th Cir. 2015) (explaining that "a municipality is not liable under § 1983 based on the common-law tort theory of respondeat superior."). Defendants' Motion to Dismiss is therefore GRANTED to the extent it requests that the Court dismiss the County as a defendant from the first and third causes of action.
As to the state law causes of action, Defendants argue that the County cannot be held vicariously liable for claims that Defendants believe should otherwise be dismissed. As noted above, the Court finds that Plaintiff has not adequately pled an IIED claim against Deputy Andrade; accordingly, that claim is DISMISSED as to both Defendants. However, the Complaint adequately states a false arrest claim under California law against Deputy Andrade, and the County can be held vicariously liable on that claim under section 812.2. Accordingly, Defendants' Motion is DENIED to the extent that it seeks to have the County dismissed as a defendant from the second cause of action.
CONCLUSION
For the reasons stated above, Defendants' Motion to Dismiss (ECF No. 13) is GRANTED in part and DENIED in part. Specifically:
A. Defendants' Motion is GRANTED to the extent it seeks dismissal of Plaintiff's fourth of cause action. That claim is DISMISSED, with leave to amend, as to both Defendant Deputy Andrade and Defendant San Joaquin County.
B. Defendants' Motion is also GRANTED to the extent it seeks the dismissal of Defendant San Joaquin County as a defendant to the first and third causes of action. Defendant San Joaquin County is DISMISSED, without leave to amend, as a defendant to the first and third causes of action.
Because Defendant San Joaquin County may be held vicariously liable on the second cause of action, it is not outright dismissed as a party to this action.
C. Defendants' Motion is DENIED to the extent it seeks dismissal of Plaintiff's remaining causes of action.
Not later than twenty (20) days following the date this Memorandum and Order is electronically filed, Plaintiff may, but is not required to, file a First Amended Complaint. If Plaintiff does not file an amended complaint, this action will proceed on the first, second, third, and fifth causes of action in the original Complaint.
IT IS SO ORDERED. Dated: December 1, 2015
/s/_________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT COURT