Chen v. Illumina, Inc., et al.
Filing
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ORDER Denying Plaintiff's Motion to File Second Amended Complaint [ECF No. 62 ]. The Court denies Ms. McCormick's motion without prejudice to Plaintiff refiling it with a showing of good cause and diligence. Signed by Judge M. James Lorenz on 1/4/2019. (lrf)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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IN RE ILLUMINA, INC. SECURITIES
LITIGATION,
Case No.: 3:16-cv-03044-L-MSB
ORDER DENYING PLAINTIFF’S
MOTION TO FILE SECOND
AMENDED COMPLAINT [ECF NO.
62]
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Pending before the Court is Plaintiff Natissisa Enterprises Ltd.’s (“Plaintiff”) motion
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to file a second amended complaint [ECF No. 62]. The Court appointed Plaintiff as the
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lead plaintiff in this class action lawsuit on March 30, 2017. See ECF No. 19. On May 30,
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2017, Plaintiff filed the operative complaint. See ECF No. 28. In that complaint, Plaintiff
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sought for the Court to certify it as the class representative. Id. at 47. The Hon. Karen S.
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Crawford, United States Magistrate Judge, issued a Scheduling Order on May 11, 2018.
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ECF No. 55. In that order, the parties’ deadline “to amend the pleadings, or to file
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additional pleadings” was set for June 11, 2018, and Plaintiff’s deadline to file its motion
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for class certification was set for September 14, 2018. Id. at 1. On May 21, 2018, Judge
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Crawford vacated the class discovery cut-off deadline originally set for September 4, 2018.
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See ECF No. 57.
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In December 2017, Plaintiff decided to voluntarily unwind. ECF No. 62 at 6.
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Plaintiff assigned its interests in this lawsuit to Oleksandr Agoshkow, Plaintiff’s ultimate
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3:16-cv-03044-L-MSB
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beneficial owner. Id. In March 2018, Oleksandr Agoshkov assigned his interests in these
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claims to his son Anton. Id. On September 12, 2018, Plaintiff filed the instant motion
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seeking to add Mr. Anton Agoshkov as an additional named plaintiff in the complaint to
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avoid interference in the dissolution and provide an additional class representative to the
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potential class. Id. at 5. Defendants Illumina Inc. (“Illumina”), Francis A. deSouza, and
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Marc A. Stapley opposed the motion on October 4, 2018. ECF No. 74. Plaintiff replied
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on October 8, 2018.
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DISCUSSION
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After a scheduling order issues, amendment of pleadings are governed by Federal
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Rule of Civil Procedure 16, not the liberal standard set forth in Rule 15(a)(2). See Johnson
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v. Mammoth Rec., Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).
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modification of the scheduling order upon a showing of good cause and diligence once the
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Court issues a scheduling order. Fed. R. Civ. P. 16(b)(4). The party seeking an amendment
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must show good cause why the provisions in the scheduling order “cannot reasonably be
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met despite the diligence of the party seeking the extension.” Johnson, 975 F.2d at 609;
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Fed. R. Civ. P. 16. “If that party was not diligent, the inquiry should end.” Johnson, 975
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F.2d at 609.
Rule 16 only allows
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Plaintiff sought to amend the operative complaint three months after the scheduling
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order deadline expired. As such, good cause must be shown as Plaintiff concedes. See
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ECF No. 62. Plaintiff contends good cause exists to justify amending the complaint for
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the following reasons: (1) to prevent unnecessary waste of resources; (2) to ensure existing
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class members do not lose their rights; (3) to further the interests of justice; and (4) no
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prejudice would result because Plaintiff has neither engaged in undue delay nor attempted
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to add new claims or expand the class. See ECF No. 62. However, Plaintiff fails to raise
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any contention regarding their diligence to amend the complaint since March 2018.
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Illumina points out that Plaintiff failed to include the assignments when it served its Initial
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Disclosures on May 4, 2018. ECF No. 74 at 9. Likewise, Plaintiff failed to inform Illumina
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and the Court of its need to amend during a telephonic case management conference held
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3:16-cv-03044-L-MSB
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on May 11, 2018. Id. at 10. Plaintiff simply does not assert facts showing it has been
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diligent in attempting to amend their complaint. Accordingly, the Court DENIES Ms.
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McCormick’s motion without prejudice to Plaintiff refiling it with a showing of good cause
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and diligence.
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IT IS SO ORDERED.
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Dated: January 4, 2019
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3:16-cv-03044-L-MSB
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