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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 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, 14 15 16 [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, 17 18 19 20 21 22 23 24 Defendants. 25 On July 12, 2017, without leave of the Court, Plaintiffs filed a Third Amended 26 Complaint. (Dkt. No. 96.) Plaintiffs stated that their first two Amended Complaints were 27 filed with leave of the Court, and that this is their first attempt to amend as a matter of 28 course under Federal Rule of Civil Procedure 15(a)(1)(B). (Dkt. No. 97.) 1 3:16-cv-01352-GPC-BLM 1 Plaintiffs’ attempt to amend fails. It is correct that “[s]ince 2009, a plaintiff has the 2 right to amend within twenty-one days of service of the complaint (15(a)(1)(A)), or 3 within twenty-one days of service of a responsive pleading or service of a motion under 4 Rule 12(b), (e), or (f), whichever comes first (15(a)(1)(B)).” Ramirez v. Cty. of San 5 Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). However, the Advisory Committee’s 6 Note regarding the 2009 amendment of Rule 15 clearly states that “the right to amend 7 once as a matter of course terminates 21 days after service of a motion under Rule 12(b), 8 (e), or (f).” Fed. R. Civ. P. 15 advisory committee’s note (emphases added). Moreover, 9 “[t]he 21-day periods to amend once as a matter of course after service of a responsive 10 pleading or after service of a designated motion are not cumulative. If a responsive 11 pleading is served after one of the designated motions is served, for example, there is no 12 new 21-day period.” Id. (emphases added). 13 Here, two motions to dismiss were filed on June 2, 2017, (Dkt. Nos. 81, 84.) 14 Another was subsequently filed on June 27, 2017. (Dkt. No. 91.) Although Plaintiffs 15 filed their proposed Third Amended Complaint within 21 days of the June 27, 2017 16 motion to dismiss, over 21 days have elapsed since the first two motion to dismiss were 17 filed on June 2, 2017. Plaintiffs’ right to amend once as a matter of course terminated 21 18 days after service of the two June 2, 2017 motions to dismiss. 19 20 21 22 Accordingly, the Court STRIKES Plaintiffs’ Third Amended Complaint. (Dkt. No. 96.) IT IS SO ORDERED. Dated: July 12, 2017 23 24 25 26 27 28 2 3:16-cv-01352-GPC-BLM

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