Kinney v. Runnion et al

Filing 6

ORDER by Judge Maria-Elena James granting 3 Motion for Extension of Time to Answer; denying 5 Ex Parte Application. (mejlc3, COURT STAFF) (Filed on 1/12/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIE M. KINNEY, Plaintiff, 8 9 10 United States District Court Northern District of California 11 v. Case No. 18-cv-00258-MEJ ORDER RE: MOTION TO AMEND; MOTION FOR EXTENSION OF TIME Re: Dkt. Nos. 3, 5 KATHY RUNNION, et al., Defendants. 12 13 Plaintiff filed a Complaint in Marin Superior Court, alleging Defendants stole her cat, 14 Emmeline, who is Plaintiff’s emotional support animal. See Compl., Dkt. No. 1-1. The 15 Complaint asserts ten claims, including a number of federal claims. See id. (asserting claims for 16 violation of 42 U.S.C. § 1983 and 42 U.S.C. § 12181). 17 With the consent of co-defendant Point Reyes Animal Hospital, Defendant Kathy Runnion 18 removed the action to this Court on January 11, 2018. Not. of Removal, Dkt. No. 1. Defendant 19 moved for an extension of time to respond to the Complaint after Plaintiff refused to stipulate to 20 one. See Mot. for Ext., Dkt. No. 3; Wagman Decl. ¶ 6 & Ex. A, Dkt. No. 3-1. Counsel was 21 retained on December 29, 2017, and the attorney primarily responsible for responding to the 22 Complaint is serving on a two-week jury trial. Wagman Decl. ¶ 4. 23 On January 12, 2018, Plaintiff filed a first amended complaint, which removed the two 24 federal claims and added a third defendant. See FAC, Dkt. No. 4. Plaintiff also filed an “Ex Parte 25 Application for Leave to Amend the Complaint.” Ex Parte Appl., Dkt. No. 5. In her Ex Parte 26 Application, Plaintiff asks the Court to remand the matter to Marin Superior Court. Id. at 2. 27 Contrary to Plaintiff’s representation (id.), her Ex Parte Application in no way complies with this 28 District’s Local Rules (or the Federal Rules of Civil Procedure), unnecessarily casts aspersions on 1 Defendant’s counsel, and needlessly burdens the Court. Federal Rule of Civil Procedure 15(a) allows a party to amend its pleadings once as a 2 3 matter of course within 21 days after serving it.1 Defendant was served with the summons and 4 Complaint on December 13, 2017. Not. of Removal ¶ 2. Plaintiff thus could amend her 5 Complaint as a matter of course until January 3, 2018. Alternatively, Plaintiff can amend her 6 Complaint once, as a matter of course, 21 days after service of a responsive pleading or a motion 7 under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1)(b). But Defendant has 8 not yet filed a responsive pleading. Moreover, Plaintiff’s ex parte Application to amend is 9 improper. See Civ. L.R. 7-10 (“Unless otherwise ordered by the assigned Judge, a party may file an ex parte motion, that is, a motion filed without notice to opposing party, only if a statute, 11 United States District Court Northern District of California 10 Federal Rule, local rule or Standing Order authorizes the filing of an ex parte motion in the 12 circumstances and the party has complied with the applicable provisions allowing the party to 13 approach the Court on an ex parte basis. The motion must include a citation to the statute, rule or 14 order which permits the use of an ex parte motion to obtain the relief sought.”). Plaintiff’s ex 15 parte Application does not cite the statute, rule, or order which permits the use of an ex parte 16 motion. See Ex Parte Appl. 17 Plaintiff represents time of the essence, but she has not taken any steps to accelerate the 18 typical litigation timeline; she has not requested a temporary restraining order or moved for an 19 order shortening time on a motion for leave to amend pursuant to Local Rule 6-1. For the foregoing reasons, the Court (1) GRANTS Defendant’s motion for a two-week 20 21 extension of time to respond to the operative Complaint until February 2, 2018; (2) DENIES 22 Plaintiff’s ex parte motion to amend the complaint; and (3) STRIKES the first amended 23 complaint. The Court also ORDERS the parties to meet and confer telephonically and in good 24 faith to determine how to most efficiently – for their clients as well as for the Court – litigate this 25 26 27 28 1 Plaintiff contends she is entitled to amend her complaint as a matter of course before a responsive pleading is filed. Ex Parte Appl. at 3. This reflects an earlier version of Rule 15(a), before its 2009 amendment. See Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1007-08 (9th Cir. 2015). 2 1 case. See Fed. R. Civ. P. 1. For example, the parties may wish to stipulate to a voluntary 2 dismissal of Plaintiff’s federal claims and to remand. 3 IT IS SO ORDERED. 4 5 6 7 Dated: January 12, 2018 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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