Becerra v. National Recovery Solutions, LLC

Filing 27

ORDER Denying without Prejudice Plaintiff's 24 Ex Parte Application to Amend the "Scheduling Order through Class Certification" and Vacate Plaintiff's Deadline to File for Class Certification. Signed by Magistrate Judge David H. Bartick on 7/3/2014. (knb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 STEFANIE BECERRA, on behalf of herself, and all others similarly situated, Plaintiff, v. 14 15 16 17 NATIONAL RECOVERY SOLUTIONS, LCC, a New York Corporation, Defendant. Civil No. 13-cv-1547-BEN (DHB) ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S EX PARTE APPLICATION TO AMEND THE “SCHEDULING ORDER THROUGH CLASS CERTIFICATION” AND VACATE PLAINTIFF’S DEADLINE TO FILE FOR CLASS CERTIFICATION [ECF No. 24] 18 19 On June 24, 2014, Plaintiff Stefanie Becerra filed an ex parte application to amend 20 the Court’s February 24, 2014 Scheduling Order Through Class Certification 21 (“Scheduling Order”) (ECF No. 22) and to vacate Plaintiff’s June 30, 2014 deadline to 22 file a motion for class certification. (ECF No. 24.) Defendant National Recovery 23 Solutions, LLC filed an opposition to Plaintiff’s ex parte application on June 30, 2014. 24 (ECF No. 25.) For the reasons stated below, Plaintiff’s ex parte application is DENIED 25 WITHOUT PREJUDICE to Plaintiff seeking modification of the Scheduling Order 26 pursuant to the procedures set forth below. 27 In her ex parte application, Plaintiff indicates that she recently became aware that 28 Defendant did not use an autodialer to dial her cell phone number but that Defendant -1- 13cv1547-BEN (DHB) 1 recorded calls with Plaintiff and others without advising or warning that the calls would 2 be recorded. As a result, Plaintiff desires to file an amended complaint deleting her 3 current cause of action under the Telephone Consumer Protection Act, 47 U.S.C. § 227 4 et seq., and adding a new cause of action under California’s Invasion of Privacy Act, 5 CAL. PENAL CODE § 630 et seq., which prohibits the recording of calls to and from 6 cellular phones without consent. Plaintiff requests in her ex parte application that the 7 Court vacate her June 30, 2014 deadline to file a motion for class certification and that 8 a new scheduling order be issued, including a new discovery deadline to permit discovery 9 addressing the proposed new cause of action, following the filing of Plaintiff’s amended 10 complaint. 11 Defendant opposes Plaintiff’s ex parte application for several reasons. First, 12 Defendant contends that no emergency warrants use of an ex parte application, and 13 whether the Scheduling Order should be vacated should be addressed by way of a 14 regularly noticed motion. Second, Defendant contends Plaintiff cannot demonstrate good 15 cause for the requested relief because she has not diligently investigated the merits of her 16 case. Specifically, Defendant produced evidence to Plaintiff four months ago proving 17 that Defendant did not use an autodialer to contact Plaintiff, and Plaintiff has been aware 18 of the evidence purportedly supporting the proposed new cause of action for more than 19 two months. Thus, Defendant contends Plaintiff has not been diligent. Finally, 20 Defendant contends Plaintiff’s ex parte application fails to comport with Local Civil Rule 21 83.3(h) in that Plaintiff’s counsel provided insufficient notice to Defendant’s counsel of 22 Plaintiff’s intent to seek ex parte relief. 23 As an initial matter, the Court agrees with Defendant that Plaintiff’s ex parte 24 application is procedurally improper. Plaintiff’s counsel’s email to Defendant’s counsel 25 on the afternoon of the day Plaintiff filed her application was not made within a 26 reasonable time. 27 More importantly, however, Plaintiff’s requested relief is now improper given that 28 the Honorable Roger T. Benitez struck Plaintiff’s motion for leave to file an amended -2- 13cv1547-BEN (DHB) 1 complaint on July 1, 2014 on the basis that Plaintiff’s motion was filed more than two 2 months after the April 16, 2014 deadline to file a motion to amend the pleadings. (ECF 3 No. 26.) In order for Judge Benitez to consider a motion for leave to file an amended 4 complaint, Plaintiff must first obtain modification of the Scheduling Order’s deadline to 5 file such a motion. However, Plaintiff does not request this relief in her current ex parte 6 application. Further, although the parties have discussed whether good cause exists for 7 the specific relief sought in Plaintiff’s application, the parties have not thoroughly briefed 8 the governing legal standards, including those discussed in Mireles v. Paragon Sys., Inc., 9 No. 13-CV-122-L (BGS), 2014 U.S. Dist. LEXIS 17230 (S.D. Cal. Feb. 11, 2014). 10 In order to have a complete record before the Court, and to enable the parties to 11 fully-brief the applicable legal standards as discussed in Mireles, IT IS HEREBY 12 ORDERED that the parties shall jointly file a document addressing whether Plaintiff can 13 demonstrate good cause and excusable neglect as required to modify the April 16, 2014 14 deadline to file a motion to amend the pleadings. The parties shall file this document no 15 later than July 11, 2014. 16 17 IT IS SO ORDERED. DATED: July 3, 2014 18 19 DAVID H. BARTICK United States Magistrate Judge 20 21 22 23 24 25 26 27 28 -3- 13cv1547-BEN (DHB)

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