When fruit stays too long on a grocery store shelf, it gets thrown out. The same could be said of lawsuits.
Anti-masker Amber Gilles may learn that April 30 when U.S. District Judge Gonzalo P. Curiel hears arguments by Sprouts to dismiss her civil rights case.
The reason?
“Despite filing the Complaint on October 30, 2020, [Gilles] failed to properly serve Sprouts with a copy of the Summons and Complaint within the [90-day] required time period, despite ample opportunity to do so,” wrote Sprouts attorney David Raizman in a motion filed Wednesday.
Amber Lynn Gilles says Sprouts violated her civil rights and the Americans with Disabilities Act by keeping her from shopping maskless at the grocery chain’s Clairemont store.
On Aug. 6, Gilles was denied entry and ordered to leave — even after claiming that she suffers from medical conditions “which make it impossible for her to wear a mask,” said an 11-page federal suit filed in San Diego.
The 36-year yoga teacher* was previously branded the “Starbucks shamer” and “Starbucks Karen.” And in late January, Gilles sued Matthew Cowan, who launched a GoFundMe drive that raised more than $100,000 for a barista who Gilles shamed online for asking her to wear a mask inside a Starbucks store.
Cowan and his media company, Mercy Agency LLC, were sued for “violation of her right to publicity,” “misappropriation of her name and likeness” and “false light invasion of privacy.” She asked unspecified monetary damages.
(Gilles later created her own GoFundMe account — titled “Redress Defamation of Character.” As of Friday night, she had raised $5,765 of a $15,000 goal. “This is a “David vs Goliath court battle and we need your support to protect all of our rights,” she wrote.)
In the Sprouts case, attorney Raizman rakes Gilles and her counsel for turning to the media instead of meeting the summons deadline.
“On November 18, 2020, Plaintiff and her counsel gave an interview to the Times of San Diego,” he wrote. “In that interview, Plaintiff’s then-counsel, Erik Nowacki, incorrectly suggested that Sprouts had already been served, and further falsely suggested that its Answer to the Complaint was due by Thanksgiving.”
Del Mar attorney Nowacki has since been replaced as Gilles counsel by Steven Douglas Baric of Newport Beach — a former vice chairman of the California Republican Party.
Sprouts says its registered agent of service was readily available — and corporate office open in Phoenix — “eschewing the easiest and least expensive modes of service.”
But Gilles took until Feb. 17 — 110 days after filing her complaint and 20 days after the deadline — to notify Sprouts by sending a process server to the home of Sprouts’ General Counsel Brandon Lombardi, “solely, it must be suspected, for its ad terrorem effect,” or appeal to fear.
Raizman added a footnote: “Sprouts can only speculate as to Plaintiff’s improper motives for delaying service, unless perhaps she and her counsel were motivated by a misguided attempt to delay the litigation of this action to a point at which she hoped the deadly effects and concerns of the COVID-19 pandemic would perhaps not be as glaringly apparent as they were in October 2020 (and as they remain today). Such dilatory tactics should not be rewarded.”
As of the Wednsday, Gilles hasn’t even filed a Return of Service with the court, Sprouts says.
“Plaintiff’s Complaint should be dismissed for untimely service pursuant to Rule 4(m) of the Federal Rules of Civil Procedure,” it said.
In an attached declaration, Sprouts legal officer Lombardi mocked the lawsuit for not even using the proper name of his company — SF Markets, LLC. He said: “Sprouts” was erroneously sued at “Sprouts Farmers Market Inc.”
He added: “I am not a party to this lawsuit or named or identified in the Complaint. My personal address is not listed on Sprouts’ website or publicized by the Company.”
Contacted via Facebook, Gilles declined to comment on the case.
“None of your business to make libel statements about me,” she told Times of San Diego. “In fact don’t write about me. My best advice to you.”
*Correction: An earlier version of this report called Gilles a former yoga teacher.