Quinones et al v. Zurich American Insurance Company et al

Filing 30

ORDER Granting Plaintiffs' Ex Parte Application 27 Seeking Leave to Belatedly File Plaintiffs' First Amended Complaint. Plaintiffs shall file the First Amended Complaint within 2 days of the filed date of this Order. Signed by Judge Gonzalo P. Curiel on 7/16/18. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAVAN QUINONES; ALEXANDRA
LEGY, a Minor by and through her
Guardian Ad Litem ROSA ALICIA
CABRERA,

Case No.: 18cv467-GPC(MDD)
ORDER GRANTING PLAINTIFFS’
EX PARTE APPLICATION
SEEKING LEAVE TO BELATEDLY
FILE PLAINTIFFS’ FIRST
AMENDED COMPLAINT
PURSUANT TO FEDERAL RULE
OF CIVIL PROCEDURE 60

Plaintiffs,

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v.

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ZURICH AMERICAN INSURANCE
COMPANY, ZURICH NORTH
AMERICA; ESIS, INC.; ESIS
WOODLAND HILLS WC; DOES
ADJUSTER(S) OTHER LEGAL HEIRS
OF LIZZETH CABRERA, Deceased; and
DOES 1 through 100, Inclusive,

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Defendants.

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Plaintiffs filed an ex parte motion for leave to file a belatedly filed first amended

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complaint (“FAC”) pursuant to Federal Rule of Civil Procedure (“Rule”) 60(b)(1) due to

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a mistake and honest belief by counsel that the first amended complaint had been timely

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filed with the Court based on clerical error. (Dkt. No. 27.) Defendant Esis, Inc. filed an

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opposition arguing the legal basis of Plaintiffs’ argument is without merit, and the

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proposed first amended complaint fails to correct the deficiencies the Court noted in its
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18cv467-GPC(MDD)

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order on Defendant’s motion to dismiss; therefore, the proposed amendment is futile and

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would be subject to dismissal based on the Court’s prior order on Defendant’s motion to

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dismiss. (Dkt. No. 29.)

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The Court agrees with Defendant that Rule 6(b)(1)(B) applies to the relief sought
by Plaintiffs, and not Rule 60(b). See Fed. R. Civ. P. 6(b)(1)(B); (b)(2).

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Rule 6(b)(1)(B) provides that when an act must be done within a specified time,

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the “court may, for good cause, extend the time . . . if the party failed to act because of

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excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). The district court has discretion to

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determine whether a party’s failure to act was excusable neglect. Pincay v. Andrews, 389

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F.3d 853, 858 (9th Cir. 2004).
Under Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S.

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380 (1993), in determining whether a party’s neglect was excusable, a court must

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examine “(1) the danger of prejudice to the non-moving party, (2) the length of delay and

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its potential impact on judicial proceedings, (3) the reason for the delay, including

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whether it was within the reasonable control of the movant, and (4) whether the moving

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party’s conduct was in good faith.” Mendez v. Knowles, 556 F.3d 757, 765 (9th Cir.

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2009) (applying the Pioneer Investment test).

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Neither party has addressed these factors. Based on the Court’s review of the

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history of this case, the Court concludes that Defendant will not be prejudiced by the

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filing of the Court ordered filing of the FAC that was filed as an attachment to the ex

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parte motion five days past the deadline. Next, five days is a brief delay and will not

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impact the proceedings. As to factors three and four, the Court looks to Plaintiffs’

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counsel’s declaration. (Dkt. No. 27-2, Licata Decl.) Licata states she completed drafting

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the FAC on July 2, 2018, four days before the due date and provided it to the legal

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secretary for filing and service. (Id. ¶ 6.) On July 9, 2018, defense counsel advised that

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he had not received the FAC. (Id. ¶ 7.) Licata investigated and learned that due to her

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mistake, she must have accidentally misplaced the document, and in fact, did not give the

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document to her legal secretary for filing and service. (Id. ¶ 8.) She states this is the first
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deadline she has ever missed in state or federal court, that it was an “honest mistake” and

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apologizes for her mistake and any inconvenience. (Id. ¶ 9.) Based on Plaintiffs’

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counsels’ declaration, the Court concludes that while the reason for the delay was within

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counsel’s control, her conduct was in good faith.

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After reviewing the Pioneer factors, the Court exercises its discretion and

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GRANTS Plaintiffs’ ex parte application seeking leave to belatedly file Plaintiffs’ First

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Amended Complaint. Plaintiffs shall file the First Amended Complaint within 2 days of

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the filed date of this Order.

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IT IS SO ORDERED.
Dated: July 16, 2018

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