Banga v. Ameriprise Auto & Home Insurance Agency

Filing 54

ORDER signed by Magistrate Judge Allison Claire on 9/3/2020 STRIKING AS MOOT 46 , 48 Motion to Set Aside Entry of Default; STRIKING AS MOOT 51 Motion for Default Judgment; STRIKING AS MOOT 53 Ex Parte Application to Continue Briefing S chedule. Plaintiff is ORDERED to file a Second Amended Complaint, which shall be due within 14 days from the date of this order; Defendants answer to the second amended complaint due within 14 days of its filing; and the Clerk is ORDERED to vacate the entry of default at ECF No. 45. (Tupolo, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KAMLESH BANGA,

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No. 2:18-cv-01072 MCE AC PS

Plaintiff,
v.

ORDER

AMERIPRISE AUTO INSURANCE
AGENCY, et al.,
Defendants.

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Plaintiff is proceeding pro se, and the action was accordingly referred to the undersigned

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by Local Rule 302(c)(21). On October 10, 2018, after receiving leave to amend, plaintiff filed a

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First Amended Complaint (“FAC”) to add a defendant, IDS Property Casualty Insurance

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Company, in addition to “Ameriprise Auto & Home Insurance Company.” ECF No. 15. On May

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20, 2020, plaintiff filed a notice of errata, stating that she had erred with respect to the Ameriprise

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defendant’s proper name and inadvertently typed “Company” as opposed to “Agency, Inc.” at

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page 1, lines 15, 22; page 2, lines 14, 19; and page 3, line 16 of the FAC. ECF No. 38 at 2.

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Defendant IDS responded to the First Amended Complaint; Ameriprise Auto & Home

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Insurance Agency, Inc. did not. ECF No. 13. On August 7, 2020, plaintiff filed a letter brief

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complaining that Ameriprise Auto & Home Insurance Agency, Inc. was refusing to respond to

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discovery because it was not properly named in the FAC. ECF No. 41 at 2. Plaintiff noted that
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Ameriprise Auto & Home Insurance Agency, Inc. had not answered or otherwise responded to

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the FAC. ECF No. 41 at 3. On August 14, 2020 the clerk entered default as to Ameriprise Auto

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& Home Insurance Agency, Inc. ECF No. 45. Ameriprise moved to set aside entry of default.

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ECF No. 46, 48. Plaintiff made a motion for default judgment. ECF No. 51. Ameriprise moved

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to extend the briefing schedule on the motion for default judgment. ECF No. 53.

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On August 26, 2020, Ameriprise Auto & Home Insurance Agency, Inc. filed a response to

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plaintiff’s letter brief. ECF No. 50. This filing makes clear that Ameriprise Auto & Home

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Insurance Agency, Inc. was refusing to participate in this litigation because it was referred to as

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Ameriprise Auto & Home Insurance Company in the FAC, and considered plaintiff’s notice of

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errata ineffective to amend the FAC. ECF No. 50 at 2. The Ameriprise defendant went on to

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assert, without any citation to authority, that even if the notice of errata was procedurally proper,

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it had no obligation to respond to the FAC because its response to the original complaint would

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be sufficient.

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Upon review of the record, the court finds that the most expeditious and just way to move

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this case forward is to order plaintiff to file a Second Amended Complaint, and to order each

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defendant to answer or otherwise respond. The court is fully expects that, once properly named,

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Ameriprise Auto & Home Insurance Agency, Inc. will participate in discovery in good faith.

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Based on the foregoing, the court hereby ORDERS as follows:

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1. The motions at ECF No. 46, 48, 51 and 53, each of which address the issue of default,
are STRICKEN as MOOT;
2. Plaintiff is ORDERED to file a Second Amended Complaint that changes all

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references to “Ameriprise Auto & Home Insurance Company” to “Ameriprise Auto &

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Home Insurance Agency, Inc.” and makes no other changes. The Second Amended

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Complaint shall be filed within 14 days of this order;

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3. Defendant Ameriprise Auto & Home Insurance Agency, Inc. and IDS Property

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Casualty Insurance Company are each required to answer or otherwise respond to the

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second amended complaint within 14 days of its filing pursuant to Fed. R. Civ. P.

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(a)(3);
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4. The Clerk of Court is ORDERED to vacate the entry of default at ECF No. 45.

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IT IS SO ORDERED.

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DATED: September 3, 2020

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