McKean v. ABC Financial Services, Inc. et al

Filing 31

ORDER: Plaintiff's Ex Parte Application for an Order Continuing the Hearing Date on Plaintiff's Motion for An Order Granting Leave to File First Amended Complaint (ECF No. 29 ) is Granted in Part and Denied in Part. Plaintiff's reda cted/redlined Proposed FAC attached to the Declaration of Sheldon A. Ostroff (Ex. 2, ECF No. 29-1) shall be considered filed nunc pro tunc as of 11/13/2018. Plaintiff's request for a continuance of the 12/17/2018 hearing date on Plaintiff's Motion for Leave to File First Amended Complaint (ECF No. 27 ) is Denied. Signed by Judge William Q. Hayes on 12/06/2018. (ajs)

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CLERK US DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
lAMt,,
DEPUTY
BY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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No. 3:18-cv-00923-WQH-RBB

JACOB MCKEAN, individually, on
behalf of himself and all others
similarly situated,

ORDER

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Plaintiff,
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v.
ABC FINANCIAL SERVICES, INC.,
an Arkansas Col'Poration; THE
ARENA MARTIAL ARTS, a business
entity form unknown,
Defendants.

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HAYES, Judge:

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The matter before the Court is Plaintiffs Ex Parte Application for an Order

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Continuing the Hearing Date on Plaintiffs Motion for An Order Granting Leave to

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File First Amended Complaint. (ECF No. 29).
I.

Background
On October 25, 2018, this Court granted Defendant ABC Financial's motion

to dismiss without prejudice, and ordered that Plaintiff file for leave to amend within
twenty days. (ECF No. 26). On November 13, 2018, Plaintiff timely filed a Motion
for Leave to File First Amended Complaint.

(ECF No. 27).

In Plaintiffs

accompanying Memorandum of Points and Authorities (ECF No. 27-1 ), Plaintiff
described in detail how the attached proposed First Amended Complaint (F AC)
differs from Plaintiffs initial Complaint. See id. at 2-3. Plaintiff failed, however,
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3:18-cv-0923-WQH-RBB

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to attach to Plaintiffs Motion a "version of [the] pleading that shows-through
redlining, underlining, strikeouts, or other similarly effective typographic
methods-how that pleading differs from the previously dismissed pleading" as
required by Local Civil Rule 15.l(c). On December 3, 2018, Defendant ABC
Financial filed Opposition on the sole ground that Plaintiff"fail[ed] to comply with
the Court's October 25, 2018 Order and Local Rule 15.l(c)." (ECF No. 28 at 2).
On December 4, 2018, after Defendant declined to stipulate to the filing of a

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redlined version of Plaintiffs FAC, Plaintiff filed the Ex Parte Motion at issue,
seeking "an [o]rder continuing Plaintiffs motion for leave and further [o]rder[ing]
the filing of the redacted/redlined Proposed FAC attached to the Declaration of
Sheldon A. Ostroff in support of this ex parte application as Exhibit 2, nunc pro
tune, as of November 13, 2018." (ECF No. 29 at 3). On December 5, 2018,

Defendant filed Opposition to Plaintiffs Ex Parte Motion. (ECF No. 30).

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II.

Ruling of the Court

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"In any case for the convenience of the parties in interest, or in the interest of

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justice, a judge may waive the applicability of these rules." S.D. Cal. Civ. R. l. l(d).

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In this case, Plaintiff states that the failure to include a redlined copy of the

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proposed FAC in Plaintiffs Motion to File First Amended Complaint "was an

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inadvertent and unintended oversight."

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Opposition to Plaintiffs Ex Parte Motion, Defendant states, "ABC was prejudiced

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because this redlined version of the proposed new pleading was not provided with

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the motion filed on November 13, 2018 and Plaintiffs effort to correct this 21 days

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later cannot change the inherent defects in the motion."

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Defendant does not provide any detail, however, as to how Defendant was

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prejudiced by Plaintiffs failure to include a redlined copy in Plaintiffs November

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13, 2018 Motion. In Defendant's prior December 3, 2018 Opposition to Plaintiffs

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Motion to Amend, Defendant's sole contention is that Plaintiffs Motion should be

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denied because of a failure to comply with Local Rule 15 .1 (c). Defendant states "it

(ECF No. 29 at 3).

In Defendant's

(ECF No. 30 at 2).

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will address all substantive defects in this proposed first amended complaint in a
motion to dismiss." (ECF No. 28 at 2).
The Court finds that Plaintiffs November 13, 2018 Memorandum of Points

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and Authorities (ECF No. 27-1) was sufficiently detailed to put Defendant on notice
of differences between the original Complaint this Court dismissed on October 25,
2018 and the proposed F AC. Defendant explicitly chose not to address "substantive
defects" in Plaintiffs FAC, and consequently has failed to show that allowing
Plaintiffs redlined version to be filed nune pro tune, as of November 13, 2018,
would cause any prejudice to Defendant. The redacted/redlined Proposed F AC
attached to the Declaration of Sheldon A. Ostroff (Ex. 2, ECF No. 29-1) shall be

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considered filed nune pro tune as of November 13, 2018. The Court declines to

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continue the December 17, 2018 hearing date on Plaintiffs Motion for Leave to File

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First Amended Complaint. (ECF No. 27).

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IT IS HEREBY ORDERED that Plaintiffs Ex Parte Application for an Order

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Continuing the Hearing Date on Plaintiffs Motion for An Order Granting Leave to

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File First Amended Complaint (ECF No. 29) is GRANTED IN PART AND

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DENIED IN PART. Plaintiffs redacted/redlined Proposed FAC attached to the

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Declaration of Sheldon A. Ostroff (Ex. 2, ECF No. 29-1) shall be considered filed

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nune pro tune as of November 13, 2018. Plaintiffs request for a continuance of the

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December 17, 2018 hearing date on Plaintiffs Motion for Leave to File First

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Amended Complaint (ECF No. 27) is denied.

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Date:

#fa/r {/

~~.___+,~<--~~~-

William Q.
es
United States District Judge

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