Blanchard et al v. Fluent, Inc. et al

Filing 21

ORDER DENYING PLAINTIFFS' MOTION TO SHORTEN TIME. Signed by Judge Maxine M. Chesney on 08/16/17. (mmclc2, COURT STAFF) (Filed on 8/16/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MIRA BLANCHARD, et al.,
Plaintiffs,

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v.

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FLUENT, INC., et al.,

ORDER DENYING PLAINTIFFS’
MOTION TO SHORTEN TIME
Re: Dkt. No. 14

Defendants.

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United States District Court
Northern District of California

Case No. 17-cv-04497-MMC

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Before the Court is plaintiffs’ administrative motion, filed August 11, 2017, to

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shorten time to hear three motions: (1) Plaintiffs’ Motion to Correct Names of Doe

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Defendants; (2) Plaintiffs’ Motion to Substitute Name of Defendant Fluent, Inc.; and (3)

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Plaintiffs’ Motion for Leave to Amend Complaint, to which a proposed Second Amended

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Complaint (“SAC”) is attached. Fluent Defendants1 and defendant Sauphtware, Inc.

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(“Sauphtware”) have filed separate oppositions, to which plaintiffs have replied. Having

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considered the parties’ respective written submissions,2 the Court rules as follows.

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Plaintiffs contend an order shortening time is needed because, according to

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plaintiffs: (1) their anticipated motion to remand is predicated on their substitution of

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named defendants for Doe defendants, and, in the absence of an order shortening time

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to hear their Motion to Correct Names of Doe Defendants, plaintiffs will be unable to file

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The Fluent Defendants are Fluent, Inc., Reward Zone USA, LLC, Rewardsflow
LLC, American Prize Center, LLC, and Mohit Singla.
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Although the Civil Local Rules of this District do not provide for the filing of a
reply in support of a motion to change time, see Civil L.R. 6-3, the Court, in this instance,
has considered the reply.

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their motion to remand within the requisite thirty days of removal; and (2) their proposed

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SAC adds Bunny Segal (“Segal”) as a plaintiff, and, in the absence of an order shortening

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time to hear their Motion for Leave to Amend Complaint, Segal will lose “more than 10%

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of her claims due to the statute of limitations.” (See Mot. at 3:19-21.) For the reasons set

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forth below, the Court finds neither reason constitutes good cause for the relief

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requested.

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First, as noted by Fluent Defendants, the thirty-day limitation on which plaintiffs

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rely pertains to a “motion to remand on the basis of any defect other than lack of subject

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matter jurisdiction”; if “it appears that the district court lacks subject matter jurisdiction,”
an action is subject to remand “at any time before final judgment.” See 28 U.S.C.

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United States District Court
Northern District of California

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§ 1447(c). Here, plaintiffs state that their remand motion will be “based on” the California

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citizenship of the defendants named in place of the Doe defendants (see Mot. at 3:6), i.e.,

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on a lack of subject matter jurisdiction, in particular, diversity jurisdiction. Consequently,

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plaintiffs’ motion to remand would not be subject to a thirty-day limitation.

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Second, as noted by Fluent Defendants and Sauphtware, Segal can timely assert

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her claims elsewhere, either by rejoining the plaintiffs in Duncan v. Fluent, Case No.

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CGC-17-558932, or filing a separate new complaint. Additionally, it would appear that

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“the submission of a motion for leave to amend, properly accompanied by the proposed

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amended complaint that provides notice of the substance of those amendments, tolls the

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statute of limitations, even though technically the amended complaint will not be filed until

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the court rules on the motion.” See Moore v. State of Ind., 999 F.2d 1125, 1131 (7th Cir.

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1993); see also Mayes v. AT&T Info. Sys., Inc., 867 F.2d 1172, 1173 (8th Cir. 1989)

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(collecting cases). Here, as noted, Segal is named as a plaintiff in the proposed SAC.

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Accordingly, plaintiffs’ motion to shorten time is hereby DENIED.

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IT IS SO ORDERED.

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Dated: August 16, 2017
MAXINE M. CHESNEY
United States District Judge

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