Im v. Home Depot U.S.A., Inc.

Filing 33

ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT; VACATING HEARING. Signed by Judge Maxine M. Chesney on October 30, 2017. (mmclc1, COURT STAFF) (Filed on 10/30/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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UN U IM,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-01092-MMC

v.
HOME DEPOT U.S.A., INC.,

ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF'S MOTION
FOR LEAVE TO FILE AMENDED
COMPLAINT; VACATING HEARING

Defendant.

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Before the Court is plaintiff Un U Im's motion, filed October 6, 2017, for "Leave to

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File Amended Complaint," by which motion plaintiff seeks leave to add South/Win, Ltd.

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("South/Win") as a defendant to the above-titled action. Defendant Home Depot U.S.A.,

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Inc. ("Home Depot") has filed a statement of non-opposition. Having read and

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considered the papers filed in support of and in response to the motion, the Court deems

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the matter suitable for decision on the parties' respective written submissions, VACATES

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the hearing scheduled for November 17, 2017, and rules as follows.

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In her complaint, plaintiff alleges she was shopping in a Home Depot store located

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in Hercules, California, and "suffered injuries when a pallet of goods fell into the aisle."

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(See Compl. at 4.) In the instant motion, plaintiff asserts South/Win "is the manufacturer

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of the bottles of automotive window washing liquid which may have contributed to the

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products falling off the shelf in the incident which led to this action." (See Pl.'s Mot. at

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2:8-10.) For the reasons set forth below, the Court will deny the motion without prejudice.

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First, under the Local Rules of this District, a party seeking leave to file an

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amended complaint "must reproduce the entire proposed pleading and may not

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incorporate any part of a prior pleading by reference." See Civil L.R. 10-1. Here, plaintiff,

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in support of the instant motion, has filed a proposed "Amendment of Complaint,"

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comprising, in its entirety, a single-page document that states the "true name" of "Doe 1"

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is South/Win. (See Pl.'s Mot. Ex. A.)1 Moreover, plaintiff previously "dismissed" all "DOE

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parties" (see Joint Case Management Statement, filed May 26, 2017, at 2:13), and, in

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any event, the proposed amendment is insufficient under the Local Rules of this District,

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as, at best, it improperly incorporates by reference the allegations made against "Doe 1"

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in the initial complaint, which allegations consist of no more than "mere conclusory

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statements,"2 see Ashcroft v. Iqbal, 556 U.S. 662, 678, 680-81 (2009) (holding

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"conclusory" allegations "do not suffice" to state claim and are "not entitled to be

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United States District Court
Northern District of California

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assumed true").
Second, the Court, in its Pretrial Preparation Order filed June 2, 2017, set a

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deadline of July 14, 2017, to amend the pleadings. Plaintiff's motion does not address

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that deadline and, consequently, plaintiff has failed to show good cause exists to extend

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it. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)

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(holding party seeking to extend deadline in pretrial order must show "good cause" exists

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to modify pretrial schedule; noting "court's evaluation of good cause is not coextensive

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with an inquiry into the propriety of the amendment"); see also U.S. Dominator, Inc. v.

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Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir. 1985) (affirming order

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denying as untimely motion filed after deadline set in pretrial order, where movant failed

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to "request[ ] a modification of the pretrial order to allow the filing of their motion").

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Lastly, as plaintiff acknowledges in her motion, the non-expert discovery cutoff is
December 22, 2017. Although plaintiff states she is "agreeable to extending" said

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The document appears to be a state court form modified to substitute the district
court for the state court.
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In the complaint, plaintiff alleges "Does 1-50 . . . owned, operated, maintained,
repaired, modified, created and controlled the subject property/premises" and were
"negligent and careless in and about the creation, maintenance and control of the subject
property/premises." (See Compl. at 5; see also Compl. at 4 (alleging "Does 1-50 were in
control of the subject property/premises").)
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deadline in order to afford South/Win an opportunity to conduct discovery (see Pl.'s Mot.

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at 4:2-3), plaintiff has neither specified a length for such extension nor addressed other

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deadlines and dates set in the Preparation Pretrial Order that may, in turn, need to be

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extended if a new defendant were to be added to the case.

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Accordingly, plaintiff's motion is hereby DENIED, without prejudice to plaintiff's

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renewing the motion, accompanied by a different proposed amended complaint, a

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showing of good cause to extend the deadline to amend the pleadings, and a proposal to

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extend to a specific date the non-expert discovery cutoff and any other deadlines and

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dates that would be affected by an extension of the non-expert discovery cutoff.

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: October 30, 2017
MAXINE M. CHESNEY
United States District Judge

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