Whitby et al v. Chelsea Investment Corporation et al

Filing 75

ORDER on Motion to Clarify 74 . The Court believes this clarifies its order, and the Clerk is directed to terminate the motion. Signed by Judge Larry Alan Burns on 3/5/15. (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.,

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

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ORDER ON MOTION TO
CLARIFY

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

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Plaintiffs sought leave to file an amended complaint in this putative class action.

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Among other things, the proposed amended complaint would have added two plaintiffs from

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the Windwood Village Apartments, Daud and Shokria Nawaey. The Court gave leave to

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amend to add these two new plaintiffs, but denied leave to add plaintiffs who live in other

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apartment complexes.

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Plaintiffs have now filed a motion for clarification (Docket no. 74) informing the Court

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for the very first time that they have a related case pending in which the minor children of

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some of the Plaintiffs in this case are themselves plaintiffs. The motion does not identify the

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other case by name or case number, but it appears to be 15cv355-H (WVG), Ethan Whitby

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v. Chelsea Investment Corporation. Failing to apprise the Court of this during the pendency

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of their motion to dismiss was improper, as was their failure, and the failure of the plaintiffs

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in the other case, to file a notice of related case. See Civil Local Rule 40.1(f). One of
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14cv1633

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Plaintiffs’ attorneys in this case is also counsel for plaintiffs in 15cv355, so obviously they

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knew about the cases’ relationship. The Court also notes that in case 15cv355, the plaintiffs

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are all minors, and no guardians ad litem are identified. See Fed. R. Civ. P. 17; Prudential

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Ins. Co. of America v. Remington, 2013 WL 3070629, slip op. at *1 (E.D.Cal., June 17,

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2013). Presumably their parents are serving in that capacity. See id.; Seibels, Bruce & Co.

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v. Nicke, 168 F.R.D. 542, 544 (M.D.N.C. 1996) (in the absence of an appointed guardian ad

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litem, parents are presumed to act in a child’s interest).

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Plaintiffs never sought leave in this case to add any residents of the Windwood Village

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Apartments except for the Nawaeys. (See Ex Parte Motion for Leave to Amend (Docket no.

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67), at 5:15–26; Proposed Amended Complaint (Docket no. 67-3) at 1, 4:12–5:20 (naming

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plaintiffs).) Nor did Plaintiffs apprise the Court of the other pending action. The issue of

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adding other family members was not briefed and Defendants were not given an opportunity

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be heard. Therefore the Court did not grant leave to add any other plaintiffs. Furthermore,

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because this is a putative class action, other residents of the Windwood Village Apartments

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who are members of families with young children are already members of the putative class.

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Why they would be bringing a parallel lawsuit, filed by an attorney representing Plaintiffs in

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this action, and presumably under the direction of their parents — who are parties to this

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action — is unclear. These multiple errors have put the two cases in a very awkward posture.

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It may happen that case 15cv355 will be transferred to the undersigned judge

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pursuant to this Court’s rule on related cases. If and when that happens, and if the posture

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of the cases has not been set right already, the Court will manage the two cases so that they

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can be properly litigated. But in the meantime, nothing prevents Plaintiffs from taking

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appropriate corrective action, such as by seeking leave to dismiss or add particular parties

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or claims in the two cases. If they do so, they should seek a comprehensive solution, rather

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than attempting to make corrections piecemeal. They should also confer with opposing

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counsel and, if possible, proceed by joint motion rather than ex parte.

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14cv1633

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The Court believes this clarifies its order, and the Clerk is directed to terminate the
motion.
IT IS SO ORDERED.
DATED: March 5, 2015

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HONORABLE LARRY ALAN BURNS
United States District Judge

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