Embotteladora Electropura S.A. de C.V. v. Accutek Packaging Equipment Company, Inc. et al

Filing 45

ORDER Denying Plaintiff's Ex Parte 41 Motion for Extension of Time to Amend Complaint, Reopen Discovery, and Continuance of Pretrial Conference; and Granting Plaintiff's 42 Motion to File Documents Under Seal. Signed by Magistrate Judge Nita L. Stormes on 2/13/18. (dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 EMBOTTELADORA ELECTROPURA S.A. de C.V., an El Salvador corporation, Plaintiff, Case No.: 16-cv-0724-GPC (DHB) v. (1) DENYING PLAINTIFF'S EX PARTE MOTION FOR EXTENSION OF TIME TO AMEND COMPLAINT, REOPEN DISCOVERY, AND CONTINUANCE OF PRETRIAL CONFERENCE COMPLIANCE [ECF NO. 41]; and ORDER 13 14 15 16 ACCUTEK PACKAGING EQUIPMENT COMPANY, INC., Defendant. 17 18 (2) GRANTING PLAINTIFF’S MOTION TO FILE DOCUMENTS UNDER SEAL [ECF NO. 42] 19 20 21 [ECF Nos. 41, 42] 22 23 24 25 26 27 28 1 16-cv-0724-GPC (DHB) 1 On February 10, 2018, Plaintiff Embotteladora Electropura S.A. de C.V. 2 (“Plaintiff”) filed an Ex Parte Motion for Extension of Time to Amend Complaint, to 3 Reopen Discovery, and for Continuance of Pretrial Conference Compliance and Hearing 4 Dates. (ECF No. 41.) The same day, Plaintiff also filed a Motion to File Documents Under 5 Seal. (ECF No. 42.) 6 [ECF No. 37] by (1) setting a briefing schedule for Plaintiff to file a Motion for Permission 7 to File a First Amended Complaint (“FAC”), (2) reopening discovery for six (6) months 8 from the date of a FAC filing, and (3) rescheduling the currently scheduled February 23, 9 2018 Final Pretrial Conference for a time convenient after the filing of a FAC and 10 completion of discovery. (ECF No. 41 at 10-11.) Plaintiff also moved ex parte for 11 permission to file Defendant Accutek Equipment Packaging Company, Inc.’s 12 (“Defendant”) responses to Plaintiff’s Special Interrogatories under seal pursuant to a 13 stipulated protective order between the parties. (ECF No. 42 at 2.) 14 Plaintiff’s ex parte motion, Defendant asserts that it is fully prepared to go to trial and 15 requests that the potential for prejudice to all parties be considered in response to Plaintiff’s 16 ex parte motion. (ECF No. 43 at 6.) Plaintiff asks the Court to modify the existing Scheduling Order In opposition to 17 In response to Plaintiff’s Special Interrogatories, Defendant served original verified 18 responses to Plaintiff on November 9, 2017, and also served amended verified responses 19 on December 6, 2017. (ECF No. 41 at 2.) In its original responses, Defendant revealed 20 that the water bottling equipment at issue in this case had previously been manufactured in 21 Suzhou, China by a Chinese manufacturer, and then imported by Defendant into the United 22 States, and then resold to Plaintiff. (Id.) Plaintiff alleges that, in its amended verified 23 responses, Defendant materially changed its verified original response by stating that the 24 water bottling equipment at issue only “included components supplied by foreign 25 manufacturers.” (Id. at 3.) For those reasons, Plaintiff desires to include additional claims 26 against Defendant for fraudulent misrepresentation, deliberate concealment of material 27 facts, negligent misrepresentations and for statutory violation of the Lanham Act. (Id. at 28 3-4.) 2 16-cv-0724-GPC (DHB) 1 The Court has considered Plaintiff’s ex parte application, and finds there is no good 2 cause to grant any of Plaintiff’s requests. At the November 16, 2017 Mandatory Settlement 3 Conference (“MSC”), the Court noted that Plaintiff had failed to complete discovery before 4 the November 13, 2107 cutoff, which hindered settlement discussions. (See ECF No. 40.) 5 For that reason, the Hon. Louisa S Porter, retired United States Magistrate Judge, ordered 6 Plaintiff to complete depositions but made clear that “[t]he Court will not entertain any 7 further motions to extend the discovery cutoff. (Id. at 2.) Accordingly, the Court DENIES 8 Plaintiff’s request to reopen discovery. 9 The Court finds that, although amendments should freely be given, justice does not 10 require such action here. Plaintiff was on notice of the Final Pretrial Conference date and 11 its related filing requirements since November 2017. (See ECF No. 40.) In fact, at the 12 November 16, 2017 MSC, Plaintiff was in receipt of the information from which it seeks 13 to add new theories of recovery, Defendant’s verified original responses, yet it failed to 14 attempt to amend its complaint until now. (See ECF No. 43-1 at 3.) The Court notes that 15 Plaintiff’s counsel is a solo practitioner and appreciates the family obligation and illnesses 16 of Attorney Jacob Segura and his office assistant. (See ECF No. 41 at 8-10.) However, all 17 of these issues and ailments arose after Plaintiff’s counsel was in receipt of Defendant’s 18 special interrogatory responses.1 For those reasons, the Court finds Plaintiff has not shown 19 good cause to be permitted to amend its complaint at this point. Notwithstanding Plaintiff’s 20 failure to demonstrate good cause, the Court finds that Plaintiff’s ex parte motion should 21 be denied on procedural grounds as the motion fails to meet the Southern District’s 22 procedural requirements for an ex parte motion. (See L.R. 83.3(g)(2)) Namely, no 23 affidavit or declaration was submitted with Plaintiff’s motion and Defendant claims no 24 25 If Mr. Segura found “himself overextended, he should have sought help by associating other counsel to assist him in complying with his legal obligations (see Rules Prof. Conduct, rule 3-110(A) [“A member shall not intentionally…fail to perform legal services with competence.”]; rule 3-110(C)(1)) or filed[] a motion to withdraw as attorney of record.” In re Sanders, 21 Cal.4th 697, 712 (1999). 1 26 27 28 3 16-cv-0724-GPC (DHB) 1 notice was provided as to when the motion would be made. Furthermore, after consultation 2 with the Hon. Gonzalo P. Curiel, United States District Judge, the Court finds that good 3 cause has not been shown sufficient enough to continue the Final Pretrial Conference date. 4 L.R. 16.1.d.3.c. Thus, Plaintiff’s requests to amend its complaint and/or reschedule the 5 February 23, 2018 Final Pretrial Conference are DENIED. 6 Accordingly, this case shall proceed pursuant to the most recent Scheduling Order 7 [ECF No. 40]. In addition, the Court GRANTS Plaintiff’s request to file Defendant’s 8 responses to Plaintiff’s Special Interrogatories under seal pursuant to a stipulated protective 9 order between the parties. 10 11 IT IS SO ORDERED. Dated: February 13, 2018 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 16-cv-0724-GPC (DHB)

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