Carr v. AutoNation, Inc. et al

Filing 35

ORDER signed by District Judge John A. Mendez on 1/5/18 GRANTING in part and DENYING in part 24 Motion to Dismiss. (Kaminski, H)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12

JAMES CARR, an individual,

13
14

No.

2:17-cv-01539-JAM-AC

Plaintiff,
v.

15

AUTONATION INC., et. al.

16

ORDER GRANTING IN PART AND
DENYING IN PART AUTONATION
INC.’S MOTION TO DISMISS

Defendants.

17
18

More than twenty years ago, Plaintiff James Carr

19

(“Plaintiff” or “Carr”) formulated a business plan (the “Business

20

Plan”) to “revolutionize” the automobile-wrecking industry into a

21

profitable system.

22

Defendant AutoNation, Inc. (“AutoNation”) and others wrongfully

23

stole his ideas from the Business Plan to open a new highly

24

profitable company called LKQ Corporation (“LKQ”).

25

out about LKQ in October 2015, Plaintiff investigated and

26

researched LKQ and, in June 2017, initiated this lawsuit,

27

alleging Misappropriation of Trade Secrets against all defendants

28

and Breach of Contract Implied in Fact against AutoNation and

Compl. ¶¶ 2-3, ECF No. 1-2.

1

He alleges that

After finding

1

defendant Wayne Huizenga (“Huizenga”).

2

to dismiss both claims against it.

3

opposes.

4

the Court grants AutoNation’s motion to dismiss the trade secret

5

misappropriation claim without prejudice and denies the motion to

6

dismiss the implied contract claim. 1

Opp’n, ECF No. 29.

Compl.

AutoNation moves

Mem., ECF No. 24.

Plaintiff

For the reasons explained below,

7
8

I.

9

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff owned and operated an automobile-wrecking business

10

in Placerville, California between 1985 and 1995.

11

Based on his experience and background as a college-educated

12

certified public accountant, Plaintiff created the Business Plan

13

to transform the automobile-wrecking industry into an efficient,

14

interconnected, and highly profitable national system capable of

15

synchronizing the supply of wrecked cars with the demand of

16

recycled auto parts.

17

Plaintiff sent letters to approximately 10 companies and

18

individuals to gauge their interest in being a business partner

19

and capital source.

20

Compl. ¶¶ 2-3.

Compl. ¶ 2.

Around November 1995,

Compl. ¶ 4.

One of two respondents asked for the Business Plan and then,

21

upon Plaintiff’s request, returned the Business Plan after

22

indicating they were not interested.

23

owned by well-known businessman Huizenga, was the other company

24

that responded.

25

and January 1996, Jeff Davis (“Davis”) of AutoNation called

26

1

27
28

Compl. ¶ 4.

Compl. ¶ 5.

AutoNation,

Specifically, between November 1995

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for November 21, 2017. In deciding this motion, the Court takes
as true all well-pleaded facts in the operative complaint.
2

1

Plaintiff to ask some follow-up questions and asked for the

2

Business Plan.

3

Business Plan, but without any confidentiality agreement or non-

4

disclosure agreement.

5

California to meet with Plaintiff in person and tour

6

approximately five automobile wrecking yards throughout Northern

7

California.

8

visit, he made clear to Davis that he “contemplated being

9

compensated or otherwise involved should Huizenga, AutoNation, or

10

Compl. ¶¶ 6, 8.

Plaintiff sent Davis the

Compl. ¶¶ 8, 42.

Compl. ¶ 9.

Davis then traveled to

Plaintiff claims that, during the

any affiliates choose to move forward with the idea.”

11

Id.

After their visit, Davis called Plaintiff and told him that

12

Huizenga and AutoNation were not interested in pursuing the

13

Business Plan.

14

Business Plan and he did.

15

automobile-wrecking industry and moved on to other ventures.

16

He did not follow developments in the automobile-wrecking

17

industry and did not keep in touch with people in the industry.

18

Id.

19

Compl. ¶ 10.
Id.

Plaintiff asked Davis to return the
Then Plaintiff left the
Id.

At a barbeque almost twenty years later, Plaintiff told a

20

new acquaintance who owned a Northern California auto parts

21

recycler that Plaintiff once had a billion dollar business idea

22

involving the automobile-wrecking industry.

23

added that he pitched it to Huizenga and AutoNation.

24

new acquaintance expressed shock and told Plaintiff that a

25

successful company called LKQ Corporation (“LKQ”) had been formed

26

with Huizenga’s involvement and that it was tremendously

27

successful.

28

Compl. ¶ 11.
Id.

He
The

Id.

Plaintiff did further research on the internet to learn that
3

1

Huizenga’s business associate founded LKQ and that Huizenga and

2

AutoNation were founding backers.

3

discovered that AutoNation owned significant shares of LKQ until

4

2003.

5

Compl. ¶ 12.

And Plaintiff

Compl. ¶ 17.
After completing his initial research, Plaintiff filed suit

6

against Defendants AutoNation, Huizenga, Davis, and LKQ in El

7

Dorado County Superior Court, alleging misappropriation of trade

8

secrets against all Defendants and breach of contract implied in

9

fact against AutoNation and Huizenga.

Compl. ¶ 53.

Defendants

10

collectively removed the case to this Court under 28 U.S.C.

11

§ 1441.

12

Court approved the parties’ stipulation to dismiss Defendants

13

Huizenga and Davis without prejudice.

Not. of Removal, ECF No. 1.

On September 19, 2017, the

Order, ECF No. 22.

14
15

II.

OPINION

16

A.

17

Trade secret misappropriation claims brought under the

18

California Uniform Trade Secrets Act (“CUTSA”) have a three year

19

statute of limitations.

20

year limitation begins to run from the time the misappropriation

21

is discovered or by the exercise of reasonable diligence should

22

have been discovered.

23
24

Statute Of Limitations

1.

Cal. Civ. Code § 3426.6.

And the three

Id.

Plaintiff’s Entitlement To Tolling

“Generally, an action may not be dismissed at the pleading

25

stage based on the statute of limitations ‘unless it is clear

26

from the face of the complaint that the statute has run and that

27

no tolling is possible.’”

28

Grp., Inc., No. 2:14-CV-1482 JAM-AC, 2015 WL 1926965, at *2 (E.D.

McMenemy v. Colonial First Lending

4

1

Cal. Apr. 15, 2015) (citing Brocade Commc’ns Sys., Inc. v. A10

2

Networks, Inc., 2011 WL 1044899, at *3 (N.D. Cal. Mar. 23, 2011)

3

(internal citation omitted)); see also Jablon v. Dean Witter &

4

Co., 614 F.2d 677, 682 (9th Cir. 1980) (“When a motion to dismiss

5

is based on the running of a statute of limitations, it can be

6

granted only if the assertions of the complaint, read with the

7

required liberty, would not permit the plaintiff to prove that

8

the statute was tolled.”)

9

tolling based on delayed discovery is usually a question of fact

10

for the jury, unless the uncontradicted facts are susceptible to

11

only one legitimate inference.

12

(citing Kline v. Turner, 87 Cal. App. 4th 1369, 1374 (2001)).

13

Whether a plaintiff is entitled to

McMenemy, 2015 WL 1926965, at *2

To avail itself of delayed discovery tolling, a plaintiff

14

must plead facts showing (1) the time and manner of discovery and

15

(2) the inability to have made an earlier discovery despite

16

reasonable diligence.

17

E-Fab, Inc. v. Accountants, Inc. Servs., 153 Cal. App. 4th 1308,

18

1320 (2007) and Rey v. OneWest Bank, FSB, 2:12-CV-02078 MCE-GGH,

19

2013 WL 127839, at *5 (E.D. Cal. Jan. 9, 2013)).

20

on the plaintiff to show diligence and conclusory allegations

21

will not withstand a motion to dismiss.

22

Surgery, Inc., 35 Cal. 4th 797, 808 (2005).

23

duty to diligently investigate is only triggered when the

24

plaintiff “has reason to suspect an injury and some wrongful

25

cause.”

26

153 Cal. App. 4th at 1319).

27
28

McMenemy, 2015 WL 1926965, at *2 (citing

The burden is

Fox v. Ethicon EndoBut the plaintiff’s

McMenemy, 2015 WL 1926965, at *2 (citing E-Fab, Inc.,

Here, AutoNation got a copy of Plaintiff’s Business Plan and
corresponded with him about it in February 1995.
5

Plaintiff

1

alleges that his Business Plan was used to open LKQ in 1998, 19

2

years before Plaintiff filed his complaint.

3

Given that the applicable statute of limitations is three years,

4

Cal. Civ. Code § 3426.6, the Court must dismiss Plaintiff’s CUTSA

5

claim unless the Court determines Plaintiff is entitled to

6

tolling based on delayed discovery of the facts constituting the

7

alleged trade secret misappropriation.

8
9

Compl. ¶¶ 8, 12.

Plaintiff has alleged that he had no reason to suspect any
wrongdoing on AutoNation’s part until October 2015, when he

10

learned at a barbecue about LKQ’s formation with Huizenga and

11

AutoNation’s involvement.

12

alleges that he had “no reason to suspect Defendants had indeed

13

pursued Plaintiff’s plan without his knowledge” because he

14

believed Davis when Davis said AutoNation would not be pursuing

15

the Business Plan.

16

show that Plaintiff had no reason to suspect any injury or that

17

AutoNation would do anything wrongful.

18

Plaintiff’s duty to diligently investigate was actually triggered

19

is a factual issue that the Court cannot resolve from the

20

pleadings alone.

21

Kline, 87 Cal. App. 4th at 1374 and E-Fab, Inc., 153 Cal. App.

22

4th at 1319).

23

Compl. ¶ 11.

Compl. ¶ 32.

Plaintiff further

These allegations plausibly

Accordingly, whether

See McMenemy, 2015 WL 1926965, at *2 (citing

In arguing that Plaintiff’s allegations do not suffice to

24

toll the statute of limitations, AutoNation relies on Goldberg v.

25

Cameron, 482 F. Supp. 2d 1136 (N.D. Cal. 2007).

26

contends that Goldberg is “on all fours” with Plaintiff’s case.

27

Mem. at 4.

28

Goldberg was one of the most well-known entertainment franchises

It is not.

AutoNation

The allegedly stolen copyright in

6

1

of the 1980’s and 1990’s: The Terminator trilogy.

2

Goldberg found that, because “The Terminator movies have been

3

exceedingly popular both domestically and abroad. . . . [e]ven

4

attempting to eschew all electronic media, it is unreasonable to

5

assert that plaintiff had zero exposure to The Terminator movies.

6

. . .”

7

from society beyond the realm of reasonable conduct, the Goldberg

8

court also refused to believe Plaintiff’s 20-year, self-imposed

9

yoga exile.

10

482 F. Supp. 2d at 1148.

The Court in

Finding a two-decade withdrawal

Id. at 1149.

But here, the existence of LKQ is not as notorious as The

11

Terminator movies and Plaintiff has pleaded specific facts

12

explaining why he did not have reason to suspect that AutoNation

13

allegedly stole his idea and created LKQ:

14

•

LKQ was formed under a different name than anyone or
anything Plaintiff dealt with when initially pitching his
idea to AutoNation.

•

The LKQ IPO did not occur until 2003, and Plaintiff did
not know about that because he had left the auto-parts
industry.

•

LKQ was given a name that, unlike Huizenga’s other
ventures (e.g. Blockbuster, Waste Management, AutoNation)
did not clearly convey the nature of the company’s
business.

15
16
17
18
19
20
21
22

Compl. ¶¶ 32-36.
To support its argument that Plaintiff should have known

23

about his potential claim earlier, AutoNation also cites Fox v.

24

Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 803-04 (2005) and

25

McKelvey v. Boeing N. Am., 74 Cal. App. 4th 151, 161 (1999).

26

Mem. at 9-10.

27

In Fox, the plaintiff was immediately aware of her injury and was

28

hospitalized shortly after the surgery giving rise to her claim.

AutoNation’s reliance on those cases is misplaced.

7

1

35 Cal. App. 4th at 803-04.

2

aware of their injury but not the full nature of the injuries or

3

the defendant’s responsibilities for those injuries.

4

App. 4th at 161.

5

he had no reason to suspect AutoNation would steal his idea after

6

Davis told him that AutoNation was not pursuing his Business

7

Plan.

8
9

In McKelvey, the plaintiffs were

74 Cal.

Here, Plaintiff has sufficiently alleged that

Compl. ¶ 32.
In further support of its argument that Plaintiff was on

constructive notice of his potential claim, AutoNation also

10

requests the Court to take judicial notice of numerous newspaper

11

articles and public documents. 2

12

public documents in his Complaint, belying his assertion that

13

AutoNation’s potential wrongdoing occurred “in secret.”

14

Compl. ¶¶ 12-18.

15

existed before the 2015 barbecue, whether that gave Plaintiff

16

constructive notice of his claim and he should have known about

17

the alleged trade secret misappropriation are questions of fact.

18

See Kling v. Hallmark Cards, Inc., 225 F.3d 1030, 1041 (9th Cir.

19

2000) (finding there was a “genuine issue of material fact as to

20

whether” the plaintiffs knew or had reason to know about the

21

actual or impending infringement of their alleged copyrights

22

before 1994 even though defendants were “openly and continuously”

23

conducting a national distribution of the allegedly infringing

24

material).

25

2

26
27
28

Mem. at 8-9.

Plaintiff cites to

See

However, even if all of these public documents

The Court denies AutoNation’s Request for Judicial Notice, ECF
No. 25, because the documents referenced therein are either
unnecessary for the disposition of AutoNation’s motion or are
documents that may not be judicially noticed to the extent that
AutoNation relies on them for the truth of the contents therein,
e.g. Exhibits A-O and K.
8

1

AutoNation also argues that the public filings about LKQ put

2

Plaintiff on constructive notice about his potential claim,

3

citing Wang v. Palo Alto Networks Inc., No. C 121095579 WHA, 2014

4

WL 1410346 (N.D. Cal. Apr. 11, 2014), In Cmty. Cause v.

5

Boatwright, 124 Cal. App. 3d 888 (1981), and Baker v. Beech

6

Aircraft Corp., 96 Cal. App. 3d 321, 327-28 (1979).

7

are inapposite.

8
9

These cases

In Wang, the Court applied the rule that publication of
patents puts those practicing in the same field and prosecuting

10

their own patent applications in that field on notice of all the

11

contents of the publication.

12

this rule was limited to the patent context and is not a “ringing

13

universal rule of law for purposes of commencing a limitations

14

period.”

15

clarified that no case “suggest[s] the existence of public

16

records precludes the application of the delayed discovery

17

doctrine as a matter of law.”

18

Ct., 66 Cal. App. 4th 1236, 1247 (1998).

19

Appeal did not consider the issue of constructive notice where

20

the plaintiff has no reason to suspect injury because the Baker

21

plaintiffs (families of plane crash victims) knew of the injury

22

immediately.

23

upon by AutoNation fail to negate Plaintiff’s argument that he

24

has pleaded sufficient facts for delayed discovery.

25
26

Id.

2.

Wang, 2014 WL 1410346, at *6.

But

The Cal. Court of Appeal reviewed Boatwright and

Prudential Home Mtg. Co. v. Sup.

96 Cal. App. 3d at 332.

In Baker, the Court of

In short, the cases relied

Prejudice to Defendant

AutoNation argues that allowing Plaintiff to pursue his

27

complaint would prejudice AutoNation in the way the statute of

28

limitations is designed to prevent.
9

Mem. at 6-7.

This argument

1

is also unpersuasive given that none of the cases cited involve

2

dismissing pleadings based on prejudice.

3

39 Cal. 3d 892, 903 (1985) (summary judgment); Bollinger v. Nat’l

4

Fire Ins. Co., 25 Cal. 2d 399, 411-12 (1944) (reversing lower

5

court’s grant of demurrer); Duty v. Abex Corp., 214 Cal. App. 3d

6

742, 746, 753 (1989) (reversing grant of directed verdict at

7

trial).

8

prejudice are similar to a defense of laches, which are typically

9

resolved at trial.

10

225 F.3d at 1041.

11

argument at this early stage of the litigation.

See Gutierrez v. Mofid,

Statute of limitations arguments based on alleged

See Duty, 214 Cal. App 3d at 748-49; Kling,
Thus, the Court cannot resolve the prejudice

12

Plaintiff has sufficiently pleaded facts to support the

13

reasonableness of his delayed discovery of the alleged trade

14

secret misappropriation.

15

dismiss the claim based on a violation of the statute of

16

limitations.

17

B.

The Court denies AutoNation’s motion to

Plaintiff’s Efforts To Maintain The Secrecy Of His
Business Plan

18
AutoNation argues that Plaintiff’s trade secret
19
misappropriation claim also fails because he has not alleged
20
sufficiently reasonable efforts to maintain the secrecy of the
21
Business Plan.

Mem. at 12.

The Court agrees.

22
Under the CUTSA, a trade secret requires “efforts that are
23
reasonable under the circumstances to maintain its secrecy.”
24
Cal. Civ. Code § 3426.1.

Whether information is secret is “a

25
relative concept and requires a fact-intensive analysis.”
26
SkinMedica, Inc. v. Histogen Inc., 869 F.Supp.2d 1176, 1194 (S.
27
28
10

1

D. Cal. 2012) (internal citations and quotation marks omitted). 3

2

If an individual discloses his trade secret to others who are

3

under no obligation to protect the confidentiality of the

4

information, or otherwise publicly discloses the secret, his

5

property right is extinguished.

6

Sys. Lab., Inc., 226 Cal. App. 4th 26, 57 (2014) (internal

7

citation and quotation marks omitted); see also SkinMedica, 869

8

F.Supp.2d at 1194 (“[I]t follows that an unprotected disclosure

9

of the holder’s secret terminates the existence of a trade

10

Altavion, Inc. v. Konica Minolta

secret.”) (internal citation omitted).

11

Whether the recipient of the purported trade secret has a

12

duty to maintain secrecy can be implied from the circumstances.

13

Direct Tech., LLC v. Elec. Arts, Inc., 836 F.3d 1059, 1070 (9th

14

Cir. 2016) (“Where the facts show that a disclosure is made in

15

order to further a particular relationship, a relationship of

16

confidence may be implied, e.g. disclosure to a prospective

17

purchaser to enable him to appraise the value of the secret[.]”)

18

(internal citation and quotation marks omitted).

19

Here, Plaintiff has not alleged sufficient facts

20

demonstrating that he took reasonable steps to protect the

21

secrecy of the Business Plan.

22

issue a non-disclosure agreement before sending the Business Plan

23

to AutoNation.

Opp’n at 14.

Plaintiff concedes he did not

Plaintiff tries to justify this

24
3

25
26
27
28

Plaintiff claims “[w]hether a trade secrets plaintiff has taken
steps to preserve secrecy that are appropriate under the
circumstances can only be determined in the summary judgment
stage (let alone the pleading[s] stage) in an ‘extreme case.’”
Opp’n at 11. But that proposition relies on an unpublished Ninth
Circuit case that has no precedential value. U.S. Ct. of App.
9th Cir. Rule 36-3.
11

1

conduct by arguing that he “was not concerned that AutoNation

2

would take issue with the substance of the NDA, but rather that

3

any hassle would cause [sic] to lose interest in the individual

4

businessman trying to sell his vision.”

5

may explain why Plaintiff acted the way he did, it does not

6

explain how Plaintiff’s inaction imposed a duty on AutoNation to

7

keep the Business Plan secret.

8
9

Opp’n at 14.

While this

The Complaint also lacks sufficient facts which would permit
the Court to determine whether Plaintiff’s alleged efforts to

10

keep the Business Plan secret were reasonable.

11

in a conclusory manner that “Plaintiff believed the circumstances

12

made clear to the recipients that their receipt of the Business

13

Plan and Plaintiff’s further input and expertise was conditioned

14

upon their agreement not to use or further disclose the Business

15

Plan without Plaintiff’s consent.”

16

not plead what those specific circumstances were or how they

17

relate to his efforts to keep the Business Plan secret.

18

Compl. ¶ 42.

Plaintiff alleges

Plaintiff does

Plaintiff also alleges that he “sought to further protect

19

his Business Plan and confirm the parties’ understanding” about

20

the alleged secrecy of the Business Plan by asking the recipients

21

to return the Business Plan.

22

not allege how this would have communicated to AutoNation that

23

his Business Plan was secret when he had not asserted any secrecy

24

until then.

25

Compl. ¶ 42.

But Plaintiff does

Compl. ¶¶ 4-6.

To support his argument that he has sufficiently pleaded the

26

reasonableness of the efforts he took to maintain the secrecy of

27

the Business Plan, Plaintiff cites to two Fifth Circuit cases

28

that lack precedential value in this Court.
12

Opp’n at 12.

1

Plaintiff also cites Montz v. Pilgrim Films & TV, Inc., 649 F.3d

2

975 (9th Cir. 2001) and Gunther-Wahl Prods., Inc. v. Mattel,

3

Inc., 104 Cal. App. 4th 27 (2002)—two cases from outside the

4

CUTSA arena—to argue that the alleged circumstances imposed a

5

duty of confidentiality on AutoNation.

6

and Gunther-Wahl Prods., those courts examined whether the

7

circumstances showed an implied contract, not whether a party had

8

a duty to keep a business idea secret.

9

App. 4th at 42-43.

10
11

Opp’n at 12-13.

In Montz

649 F.3d at 979; 104 Cal.

The cases are neither applicable nor

persuasive.
Because Plaintiff has failed to allege the reasonable steps

12

he took to maintain the secrecy of the Business Plan, his trade

13

secret misappropriation claim fails and must be dismissed.

14

Altavion, Inc., 226 Cal. App. 4th at 57.

See

15

C.

Breach Of Contract Implied By Fact

16

AutoNation does not argue against the merits of Plaintiff’s

17

breach of implied contract claim.

18

AutoNation again cites Goldberg (and no other case) to argue that

19

Plaintiff has not adequately pleaded facts to toll the two-year

20

statute of limitations on this claim.

21

already indicated above that it does not find Goldberg to be on

22

all fours here.

23

this claim as well.

24

See generally Mem.

Mem. at 15.

Rather,

The Court has

The Court’s tolling analysis above applies for

In addition, whether Plaintiff exercised reasonable

25

diligence in discovering AutoNation’s alleged breach is “a

26

question of fact for the court or jury to decide.”

27

Inc. v. KTTV, 147 Cal. App. 3d 805, 832-33 (1983) (internal

28

quotation marks and citation omitted).
13

April Enter.,

And a plaintiff is on

1

inquiry notice when he suspects or should suspect that their

2

injury was caused by wrongdoing.

3

Sup. Ct., 225 Cal. App. 4th 1222, 1234, 1236 (2014) (finding

4

plaintiffs were on inquiry notice from the date they sent an

5

email asking whether their idea for a show was stolen).

6

the Court concluded above, Plaintiff has adequately pleaded that

7

he had “no reason to suspect Defendants had indeed pursued

8

Plaintiff’s plan without his knowledge” because he believed Davis

9

when he said AutoNation would not be pursuing the business idea.

NBC Universal Media, LLC v.

But, as

10

Compl. ¶ 32.

11

documents about LKQ’s origins show that Plaintiff should have

12

suspected wrongdoing is a factual issue the Court cannot resolve

13

at this stage.

14

to dismiss the implied contract claim.

Whether the existence of publicly available

Accordingly, the Court denies AutoNation’s motion

15

D.

Leave to Amend

16

Courts dismissing claims under Federal Rule of Civil

17

Procedure 12(b)(6) have discretion to permit amendment, and there

18

is a strong presumption in favor of leave to amend.

19

Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051-52 (9th Cir.

20

2003).

21

not appropriate unless it is clear. . . that the complaint could

22

not be saved by amendment.”

23

omitted).

Eminence

“Dismissal with prejudice and without leave to amend is

Id. at 1052 (internal citation

24

The Court is not completely convinced that further amendment

25

would be futile and will give Plaintiff an opportunity to plead a

26

legally sufficient trade secret misappropriation claim against

27

AutoNation.

28

///
14

1
2

III.

ORDER

For the reasons set forth above, the Court DENIES

3

AutoNation’s motion to dismiss Plaintiff’s implied contract claim

4

and GRANTS AutoNation’s motion to dismiss Plaintiff’s trade

5

secret misappropriation claim with leave to amend.

6

Plaintiff elect to file a First Amended Complaint to address the

7

dismissed trade secret misappropriation claim against AutoNation,

8

he must do so by January 24, 2018.

9

pleading to a First Amended Complaint is due twenty (20) days

10
11
12

thereafter.
IT IS SO ORDERED.
Dated:

January 5, 2018

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15

Should

Defendant’s responsive