Keating et al v. Jastremski et al

Filing 460

ORDER Granting Motion to Vacate [ECF No. 458 ]. It is ordered as follows: 1. The Order Granting Motion to Amend Counterclaim (doc. no. 454 ) is vacated, and TRG's second amended counterclaim (doc. no. 457 ) is stricken. 2. TRG's motion f or leave to amend counterclaim (doc. no. 439 ) is reinstated. 3. No later than 9/4/2019, Silvers shall serve and file his opposition, if any. If Counter-Defendants Steven Dalton and/or Ardent Retirement Planning, LLC wish to oppose TRG's motion for leave to amend, they may do so, provided that all Counter-Defendants who wish to oppose file a joint opposition brief no more than 25 pages in length no later than 9/4/2019. 4. No later than 9/11/2019, TRG shall file its reply, if any. 5. In all other respects, the parties shall comply with all applicable federal rules, local rules of this District and the undersigned's Standing Order for Civil Cases. Signed by Judge M. James Lorenz on 8/20/2019. (lrf) (Additional attachment(s) added on 8/20/2019: # 1 Rejected Document 457) (lrf).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JEREMY L. KEATING ET AL.,

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Plaintiffs,
v.

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CASE NO. 3:15-cv-00057-L-AGS
ORDER GRANTING MOTION TO
VACATE

JOHN A. JASTREMSKI ET AL.,

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Defendants.

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AND RELATED CROSS-ACTIONS.

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Pending before the Court is a motion filed by Counter-Defendant Lloyd J.

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Silvers ("Silvers")1 seeking to set aside the order granting Counterclaimant The

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Retirement Group LLC ("TRG") leave to amend the counterclaim. (Doc. no. 454.)

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Silvers styles his motion as a "Motion to Vacate Order and Allow a Response to the

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Retirement Group, LLC's Motion to Amend Their Complaint."2 (Doc. no. 458.) TRG

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Silvers suggests that his motion is made on behalf of himself as well as CounterDefendants Steven Dalton and Ardent Retirement Planning, LLC. (See, e.g., doc. no.
458 at 2.) As a pro se litigant, Silvers can represent only himself. See Civ. L. Rule
83.3.b.

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Silvers has not sought a hearing date for his motion and has not complied with
other local rules regarding motions. (See Civ. L. R. 7.1; CM/ECF Administrative
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filed an opposition. (Doc. no. 459.) For the reasons stated below, the motion is

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granted.

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Silvers argues that due to a court staff error he was deprived of an opportunity to

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oppose TRG's motion. He contends he relied on the Notice of E-Filed Document

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Discrepancy ("Discrepancy") which accepted for filing TRG's motion for leave to

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amend despite failure to comply with local rules but indicated that in the absence of

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compliance by noon on Friday, July 26, 2019, the motion would be stricken. (Doc. no.

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449.) Because the Discrepancy was issued in error, the docket does not reflect any

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subsequent action by TRG and also does not reflect that the motion was stricken.

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Silvers's opposition to TRG's motion was due on Monday, July 29, 2019. See Civ. L.

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Rule 7.1.e. Silvers did not file an opposition, and on Wednesday, August 1, 2019, the

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Court granted TRG's motion for leave to amend as unopposed. (Doc. no. 454.)

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Silvers contends he did not file an opposition because he was expecting and

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waiting for TRG's motion to be stricken. Given that no order striking the motion was

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entered and that Silvers could file his opposition after TRG's July 26 due date, his

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failure to act was unreasonable. Nevertheless, to allow for complete airing of the

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merits of TRG's motion, Silvers's motion is granted.

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Accordingly, it is ORDERED as follows:

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1.

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The Order Granting Motion to Amend Counterclaim (doc. no. 454) is

vacated, and TRG's second amended counterclaim (doc. no. 457) is stricken.
2.

TRG's motion for leave to amend counterclaim (doc. no. 439) is

reinstated.
3.

No later than September 4, 2019, Silvers shall serve and file his

opposition, if any. If Counter-Defendants Steven Dalton and/or Ardent Retirement

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Policies and Procedures Manual ¶ 2.g.) Pro se status does not excuse him from
compliance. See Civ. L. Rule 83.11.a. Because Silvers met and conferred with TRG's
counsel before filing, the motion is construed as an ex parte application. (See doc. no.
458-1.) See Civ. Loc. R. 83.3.g; Standing Order for Civil Cases at 2.
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Planning, LLC wish to oppose TRG's motion for leave to amend, they may do so,

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provided that all Counter-Defendants who wish to oppose file a joint opposition brief

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no more than 25 pages in length no later than September 4, 2019.

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4.

No later than September 11, 2019, TRG shall file its reply, if any.

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In all other respects, the parties shall comply with all applicable federal

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rules, local rules of this District and the undersigned's Standing Order for Civil Cases.
IT IS SO ORDERED.

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Dated: August 20, 2019

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