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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STEFANIE BECERRA, on behalf of
herself, and all others similarly situated,
Plaintiff,
v.

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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]

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On June 24, 2014, Plaintiff Stefanie Becerra filed an ex parte application to amend

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the Court’s February 24, 2014 Scheduling Order Through Class Certification

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(“Scheduling Order”) (ECF No. 22) and to vacate Plaintiff’s June 30, 2014 deadline to

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file a motion for class certification. (ECF No. 24.) Defendant National Recovery

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Solutions, LLC filed an opposition to Plaintiff’s ex parte application on June 30, 2014.

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(ECF No. 25.) For the reasons stated below, Plaintiff’s ex parte application is DENIED

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WITHOUT PREJUDICE to Plaintiff seeking modification of the Scheduling Order

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pursuant to the procedures set forth below.

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In her ex parte application, Plaintiff indicates that she recently became aware that

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Defendant did not use an autodialer to dial her cell phone number but that Defendant
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13cv1547-BEN (DHB)

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recorded calls with Plaintiff and others without advising or warning that the calls would

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be recorded. As a result, Plaintiff desires to file an amended complaint deleting her

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current cause of action under the Telephone Consumer Protection Act, 47 U.S.C. § 227

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et seq., and adding a new cause of action under California’s Invasion of Privacy Act,

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CAL. PENAL CODE § 630 et seq., which prohibits the recording of calls to and from

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cellular phones without consent. Plaintiff requests in her ex parte application that the

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Court vacate her June 30, 2014 deadline to file a motion for class certification and that

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a new scheduling order be issued, including a new discovery deadline to permit discovery

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addressing the proposed new cause of action, following the filing of Plaintiff’s amended

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complaint.

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Defendant opposes Plaintiff’s ex parte application for several reasons. First,

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Defendant contends that no emergency warrants use of an ex parte application, and

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whether the Scheduling Order should be vacated should be addressed by way of a

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regularly noticed motion. Second, Defendant contends Plaintiff cannot demonstrate good

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cause for the requested relief because she has not diligently investigated the merits of her

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case. Specifically, Defendant produced evidence to Plaintiff four months ago proving

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that Defendant did not use an autodialer to contact Plaintiff, and Plaintiff has been aware

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of the evidence purportedly supporting the proposed new cause of action for more than

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two months. Thus, Defendant contends Plaintiff has not been diligent. Finally,

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Defendant contends Plaintiff’s ex parte application fails to comport with Local Civil Rule

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83.3(h) in that Plaintiff’s counsel provided insufficient notice to Defendant’s counsel of

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Plaintiff’s intent to seek ex parte relief.

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As an initial matter, the Court agrees with Defendant that Plaintiff’s ex parte

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application is procedurally improper. Plaintiff’s counsel’s email to Defendant’s counsel

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on the afternoon of the day Plaintiff filed her application was not made within a

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reasonable time.

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More importantly, however, Plaintiff’s requested relief is now improper given that

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the Honorable Roger T. Benitez struck Plaintiff’s motion for leave to file an amended
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13cv1547-BEN (DHB)

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complaint on July 1, 2014 on the basis that Plaintiff’s motion was filed more than two

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months after the April 16, 2014 deadline to file a motion to amend the pleadings. (ECF

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No. 26.) In order for Judge Benitez to consider a motion for leave to file an amended

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complaint, Plaintiff must first obtain modification of the Scheduling Order’s deadline to

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file such a motion. However, Plaintiff does not request this relief in her current ex parte

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application. Further, although the parties have discussed whether good cause exists for

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the specific relief sought in Plaintiff’s application, the parties have not thoroughly briefed

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the governing legal standards, including those discussed in Mireles v. Paragon Sys., Inc.,

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No. 13-CV-122-L (BGS), 2014 U.S. Dist. LEXIS 17230 (S.D. Cal. Feb. 11, 2014).

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In order to have a complete record before the Court, and to enable the parties to

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fully-brief the applicable legal standards as discussed in Mireles, IT IS HEREBY

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ORDERED that the parties shall jointly file a document addressing whether Plaintiff can

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demonstrate good cause and excusable neglect as required to modify the April 16, 2014

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deadline to file a motion to amend the pleadings. The parties shall file this document no

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later than July 11, 2014.

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IT IS SO ORDERED.
DATED: July 3, 2014

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DAVID H. BARTICK
United States Magistrate Judge

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13cv1547-BEN (DHB)