Whitby et al v. Chelsea Investment Corporation et al

Filing 59

ORDER Striking Motion for Leave to Amend 58 . Plaintiffs may file a renewed motion for leave to amend no later than December 28, 2014 but they must first obtain the required hearing date. Signed by Judge Larry Alan Burns on 12/18/14.(kas) (Additional attachment(s) added on 12/19/2014: # 1 Rejected Document) (kas).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LANDON WHITBY, et al.,

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CASE NO. 14cv1633-LAB (BLM)
Plaintiffs,

ORDER STRIKING MOTION FOR
LEAVE TO AMEND; AND

vs.
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ORDER DIRECTING PLAINTIFF
TO REFILE MOTION

CHELSEA INVESTMENT
CORPORATION, etc., et al.,
Defendants.

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On December 1, 2014, Magistrate Judge Barbara Major issued an order amending

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an earlier scheduling order. The effect of that order was to extend the date until December

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15 the date by which Plaintiffs could file a motion for leave to amend the complaint.

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On December 15, Plaintiffs filed a noticed motion for leave to file an amended

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complaint. The notice of motion gives no date or time, and simply lists both as “TBD.” A

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footnote offers the explanation that Plaintiffs’ counsel “tried to contact Judge Burns’

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chambers to get a hearing date in advance of this filing” as required by Civil Local Rule

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7.1(b) “but did not get a return call in time before the deadline for filing this motion.” The

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chambers was fully staffed all day on December 15 and no messages or emails were

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received from Plaintiffs’ counsel. In addition, the electronic telephone log shows no call

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received on that date from Plaintiff’s counsel’s office.

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There are any number of explanations why a message might not be received or a call

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returned, and the Court is not questioning the truthfulness of Plaintiff’s counsel’s

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representations. But the key point is that it is the responsibility of the moving party’s counsel,

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not chambers staff, to see that the date is obtained. They are well advised to do so early

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rather than waiting until the deadline is upon them. See Kashin v. Kent, 2007 WL 1975435,

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at *2 (S.D.Cal., Apr. 26, 2007) (citing authority for the principle that counsel should file early,

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and that by waiting until the last moment they assume the risk of untimeliness).

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The requirement that a party obtain a hearing date from the judge's clerk is an

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important one, and failure to comply with it is grounds for rejecting or striking a filing — even

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if that results in a party losing its substantive rights. Id. at *1–2. See also Kashin v. Kent, 342

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Fed. Appx. 341 (9th Cir. 2009) (affirming district court’s rejection of motion and subsequent

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denial on untimeliness grounds of motion for attorney’s fees). The motion (Docket no. 58)

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is therefore ORDERED STRICKEN and the Clerk is directed to remove it from the docket.

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The Court recognizes the strong policy in favor of decisions on the merits rather than

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by default. See Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986).

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a renewed motion for leave to amend no later than December 28, 2014 but they must first

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obtain the required hearing date..

Plaintiffs may file

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The renewed motion must address an additional issue, on which the Court would

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have required additional briefing even if the motion were not stricken. One of the reasons

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Plaintiffs gave in their ex parte motion before Judge Major (Docket no. 46) was the pendency

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of two motions that could “impact the scope of necessary amendments.” (Id. at 2:2–4.)

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Essentially, Plaintiffs are asking for a ruling on motions to dismiss the complaint that they

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intend to amend. Because an amended pleading supersedes the previous one, the Court’s

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ruling on the pending motions might well be dead on arrival. Besides the fact that the Court

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is not allowed to rule on moot issues or issue advisory opinions, it would be a great waste

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of judicial resources. In their renewed motion for leave to amend, Plaintiffs should make

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clear whether the proposed amendments would render the pending motions moot. If so, and

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if the motion to amend were granted, the pending motions would be denied as moot If not,
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the Court could rule on the motions. The renewed motion must therefore explain to what

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extent the relief sought would render the pending motions moot.

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Assuming leave to amend were granted, Defendants would have two options. If they

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believe the pending motions would become moot or would require amendment so as to

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apply properly to the proposed amended complaint, the motions could be denied as moot

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and Defendants could move to dismiss the amended complaint if they think that is

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warranted. If they believe the proposed amendments to the complaint would have little or no

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effect on the pending motions to dismiss, the Court could construe the pending motions as

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motions to dismiss the amended complaint. Defendants’ opposition to the motion for leave

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to amend should address which of the two options they think is appropriate here.

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IT IS SO ORDERED.

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DATED: December 18, 2014

___________________________________

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HONORABLE LARRY ALAN BURNS
United States District Judge

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