Kerr v. Zacks Investment Research, Inc. et al

Filing 98

ORDER Striking Plaintiff's Third 96 Amended Complaint. Signed by Judge Gonzalo P. Curiel on 7/12/17.(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN KERR, EDWARD LI, TIM
BARNARD, and KENNETH CURTIS,
individually and on behalf of all others
similarly situated,

Case No.: 3:16-cv-01352-GPC-BLM
ORDER STRIKING PLAINTIFFS’
THIRD AMENDED COMPLAINT

Plaintiff,

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[ECF Nos. 96, 97.]

v.
ZACKS INVESTMENT RESEARCH,
INC., an Illinois corporation, NATIONAL
MARKETING RESOURCES, LLC, a
Missouri limited liability company;
PARADIGM DIRECT LLC, a Delaware
limited liability company; PARADIGM
DIRECT MARKETING, LLC, a
Delaware limited liability company;
RESPONSE NORTH, LLC, a Utah
limited liability company; and DOES 550, inclusive,

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Defendants.

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On July 12, 2017, without leave of the Court, Plaintiffs filed a Third Amended

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Complaint. (Dkt. No. 96.) Plaintiffs stated that their first two Amended Complaints were

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filed with leave of the Court, and that this is their first attempt to amend as a matter of

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course under Federal Rule of Civil Procedure 15(a)(1)(B). (Dkt. No. 97.)
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3:16-cv-01352-GPC-BLM

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Plaintiffs’ attempt to amend fails. It is correct that “[s]ince 2009, a plaintiff has the

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right to amend within twenty-one days of service of the complaint (15(a)(1)(A)), or

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within twenty-one days of service of a responsive pleading or service of a motion under

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Rule 12(b), (e), or (f), whichever comes first (15(a)(1)(B)).” Ramirez v. Cty. of San

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Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). However, the Advisory Committee’s

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Note regarding the 2009 amendment of Rule 15 clearly states that “the right to amend

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once as a matter of course terminates 21 days after service of a motion under Rule 12(b),

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(e), or (f).” Fed. R. Civ. P. 15 advisory committee’s note (emphases added). Moreover,

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“[t]he 21-day periods to amend once as a matter of course after service of a responsive

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pleading or after service of a designated motion are not cumulative. If a responsive

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pleading is served after one of the designated motions is served, for example, there is no

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new 21-day period.” Id. (emphases added).

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Here, two motions to dismiss were filed on June 2, 2017, (Dkt. Nos. 81, 84.)

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Another was subsequently filed on June 27, 2017. (Dkt. No. 91.) Although Plaintiffs

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filed their proposed Third Amended Complaint within 21 days of the June 27, 2017

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motion to dismiss, over 21 days have elapsed since the first two motion to dismiss were

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filed on June 2, 2017. Plaintiffs’ right to amend once as a matter of course terminated 21

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days after service of the two June 2, 2017 motions to dismiss.

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Accordingly, the Court STRIKES Plaintiffs’ Third Amended Complaint. (Dkt.
No. 96.)
IT IS SO ORDERED.
Dated: July 12, 2017

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3:16-cv-01352-GPC-BLM