Mariza Zamora v. Victoria's Secret Stores, LLC et al

Filing 44

MINUTES (IN CHAMBERS) Order DENYING Plaintiff's Motion to Amend Complaint and Motion to Remand 34 by Judge Kenly Kiya Kato. Accordingly, Plaintiff's Motion to Amend is DENIED. (SEE DOCUMENT FOR FURTHER DETAILS.) (rolm)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

SACV 23-01679-KK-DFMx

Date: August 29, 2024

Title: Mariza Zamora v. Victoria’s Secret Stores, LLC, et al.

Present: The Honorable KENLY KIYA KATO, UNITED STATES DISTRICT JUDGE
Noe Ponce

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

(In Chambers) Order DENYING Plaintiff’s Motion to Amend Complaint
and Motion to Remand [Dkt. 34]
I.
INTRODUCTION

On August 3, 2023, plaintiff Mariza Zamora (“Plaintiff”) filed the operative First Amended
Complaint (“FAC”) asserting general negligence and premises liability claims against defendants
Victoria Secret Stores, LLC and Nicolette Padin (“Defendants”) in the Superior Court of California,
County of Orange. ECF Docket No. (“Dkt.”) 1-2. On September 6, 2023, Defendants removed
the matter to this Court. Dkt. 1.
On July 23, 2024, Plaintiff filed a Motion for Leave to Amend Complaint and Remand to
Orange County Superior Court (“Motion”). Dkt. 34.
The Court finds the Motion appropriate for resolution without oral argument. See FED. R.
CIV. P. 78(b); L.R. 7-15. For the reasons set forth below, Plaintiff’s Motion is DENIED.
II.
BACKGROUND
On June 6, 2023, Plaintiff filed a Complaint against Defendants arising from an alleged
incident on August 3, 2021, when a sign fell and hit Plaintiff while shopping at Defendants’ store,
“causing severe injuries.” Dkt. 1-1.
Page 1 of 3

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk NP

On August 3, 2023, Plaintiff filed the operative FAC, adding Nicolette Padin as a named
defendant. Dkt. 1-2. Plaintiff alleged Padin was “the manager on duty at [the] time of the incident.”
Dkt. 14.
Dkt. 1.

On September 6, 2023, Defendants filed a Notice of Removal asserting diversity jurisdiction.

On December 26, 2023, this Court issued the Civil Trial Scheduling Order setting a deadline
of January 18, 2024, to submit Amended Pleadings and add new parties. Dkt. 15.
On July 23, 2024, Plaintiff filed the instant Motion pursuant to 28 U.S.C. §§ 1447(c) and
1447(e), seeking to add a new defendant, Rhiannon Morales (“Morales”), and remand the case back
to state court. Dkt. 34. Plaintiff alleges Morales was the manager at the time of the alleged incident.
Dkt. 34 at 3-4.
On August 14, 2024, Defendant filed an Opposition to the Motion arguing Padin 1 and
Morales are not proper defendants under Federal Rules of Civil Procedure 19(a), Plaintiff has unduly
delayed seeking to amend and remand, and joinder is sought solely to defeat diversity jurisdiction.
Dkt. 35. 2
On August 15, 2024, Plaintiff filed a Reply in support of her Motion. Dkt. 37. 3 On August
22, 2024, Plaintiff filed a supplemental brief in support of her Motion. Dkt. 42.
This matter, thus, stands submitted.
III.
LEGAL STANDARD
“When a party seeks to amend a complaint after the deadline set in the pretrial scheduling
order, the liberal standard of Rule 15 of the Federal Rule[s] of Civil Procedure no longer applies.”
Philadelphia Indem. Ins. Co. v. IEC Corp., No. SACV-160295-DOCA(JWx), 2017 WL 5664988, at
*2 (C.D. Cal. July 27, 2017). “Once the district court ha[s] filed a pretrial scheduling order pursuant
to Federal Rule of Civil Procedure 16 [establishing] a timetable for amending pleadings[,] [Rule 16’s]
standards control[ ].” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-608 (9th Cir.
1992).

The Court will issue a separate Order to Show Cause as to why defendant Padin should not
be dismissed.
1

Defendants’ Opposition to the Motion was due August 8, 2024. See L.R. 7-9; Fed. R. Civ.
P. 6(a). Pursuant to Local Rule 7-12, “[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[.]” The
Court will, nevertheless, consider the untimely Opposition and address the merits of the Motion.
2

Plaintiff’s Reply objected to Defendants’ untimely Opposition. Dkt. 37. While the Court
denied Plaintiff’s request to strike the untimely Opposition, the Court permitted Plaintiff additional
time to file a supplemental brief in support of her Motion.
3

Page 2 of 3

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk NP

A scheduling order “may be modified only for good cause and with the judge’s consent.”
FED. R. CIV. P. 16(b)(4). “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the
party seeking amendment.” Johnson, 975 F.2d at 609. However, “[a]bsent a request to modify the
scheduling order, [a] district court may deny any late-filed motion solely on the basis that the
scheduling order barred motions after a cut-off date.” VNT Prop., LLC v. City of Buena Park, No.
SACV-150007-DOC(KESx), 2017 WL 11680968, at *2 (C.D. Cal. Jan. 17, 2017) (citing U.S.
Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir. 1985)).
IV.
DISCUSSION
Here, Plaintiff has not filed a request to modify the scheduling order. Per this Court’s
December 26, 2023 Scheduling Order, the last day to file a motion to amend pleadings or add new
parties was January 18, 2024. See dkt. 15. The instant Motion was filed on July 23, 2024, over five
months after the deadline set by the Court. See dkt. 34. Thus, Plaintiff’s instant Motion is untimely.
Furthermore, even assuming the Court construes Plaintiff’s instant Motion as a request to
modify the December 26, 2023 Scheduling Order 4, Plaintiff has not shown excusable neglect or
good cause to excuse her untimely filing. Plaintiff claims the reason for the untimely filing is
because “informal attempts to obtain the identity of the manager on duty on the date of the incident
. . . was not forthcoming.” Dkt. 34 at 3. However, Morales’ name was provided in initial disclosures
on February 8, 2024, see dkt. 36-3, yet Plaintiff failed to depose her until June 11, 2024. See dkt. 361, ¶ 17. Ultimately, Plaintiff fails to demonstrate excusable neglect or good cause for why the instant
Motion was not filed until four and a half months after she discovered Morales’ identity.
Accordingly, Plaintiff’s Motion to Amend is DENIED. 5
V.
CONCLUSION
For the reasons set forth above, Plaintiff’s Motion is DENIED.
IT IS SO ORDERED.

“The Ninth Circuit does not automatically consider an untimely motion to amend a
complaint to be a motion to modify the scheduling order.” Philadelphia Indem. Ins. Co., 2017 WL
5664988, at *3 (citing Johnson, 975 F.2d at 1104).
4

5

Given that the Motion is untimely, Plaintiff’s request to remand is MOOT.

Page 3 of 3

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk NP