Motion to amend (mostly) granted; good post-Oliver result

Hey, procedure nerds!   We got a good decision in our Taco Bell case today, granting in (large) part our motion to amend the complaint.

In the summer of 2011, the Ninth Circuit handed down its decision in Oliver v. Ralphs Grocery Co., 654 F.3d 903 (9th Cir. 2011), holding that a plaintiff in a case under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181, had to list all challenged barriers in the complaint.   Not long after that decision, the judge in the Taco Bell case held that it did not apply in that case because it was a class action.   Moeller v. Taco Bell Corp., 816 F.Supp.2d 831, 851-52 (N.D. Cal. 2011).   Later, after decertifying the damages portion of the class, she held that  Oliver did apply to the named plaintiffs’ damages claims, and granted Taco Bell’s motion for summary judgment as to any such claims not listed in the operative complaint.  Moeller v. Taco Bell Corp., 2013 WL 4014728 (N.D. Cal. Aug. 5, 2013).

The operative complaint had been filed in August, 2003, and the parties had been litigating about all of the barriers — not just those in the initial complaint — for over ten years, so we moved to amend to list all of the barriers.   In today’s decision, the Court granted most of that request, denying only our request to pursue deterrence claims.   Couple of key points:

  • “[L]eave to amend may be warranted where the pleading standard has changed during the course of the litigation.”   Citing Sonoma County Ass’n of Retired Employees v. Sonoma County, 708 F.3d 1109, 1117-18 (9th Cir. 2013); Moss v. United States Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).
  • There was no undue delay, even with the passage of over ten years, given that we would not have known of the need to amend until the August, 2013, decision applying Oliver to the named plaintiffs’ damages claims.
  • The new claims relate back to the original complaint because Taco Bell was on notice concerning all of the claims.
  • In any event, the claims were tolled during the period that the damages class was certified.

We filed the Second Amended Class Action Complaint earlier today, after editing it per the Court’s instructions.