Wilson Elser Moskowitz Edelman & Dicker LLP
09/06/2023 | News release | Distributed by Public on 09/06/2023 14:11
Kearns and Kustic Obtain Dismissal with Prejudice at the Pleadings Stage
Kearns and Kustic Obtain Dismissal with Prejudice at the Pleadings Stage
September 6, 2023
Patrick Kearns (Partner-San Diego) and Sarena Kustic (Of Counsel-San Diego) obtained dismissal of a complaint with prejudice in a case before the U.S. District Court for the Eastern District of California. The case involved allegations of discrimination arising from the plaintiff's removal from a flight and being banned from using a national airline, Wilson Elser's client. Patrick and Sarena removed the state court case to the Eastern District of California, then moved to dismiss the complaint for failure to state a claim. The court granted the motion but gave the pro se plaintiff leave to amend. Instead of filing and amended complaint, the plaintiff filed a new state court action adding more causes of action to the complaint. Patrick and Sarena removed the case to federal court once more and filed a second motion to dismiss for failure to state a claim. This time, they argued leave to amend would be futile because, despite the court providing the plaintiff with clear examples of how to plead his claims, the plaintiff's new complaint contained the exact same defects as the prior one. The court agreed and dismissed the complaint with prejudice.