Sergio Ramirez v. County of San Bernardino

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.