Moalem v. International Spa, Association

• Court: District Court, D. Nevada
• Decided: January 13, 2020
• Docket: 2:18-cv-02341
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 SHIMON MOALEM, ) 4 ) Plaintiff, ) Case No.: 2:18-cv-02341-GMN-NJK 5 vs. ) ) ORDER 6 INTERNATIONAL SPA ASSOCIATION, ) 7 ) Defendant. ) 8 9 Pending before the Court is Defendant International Spa Association’s (“Defendant’s”) 10 Motion for Summary Judgment, (ECF No. 21). Plaintiff Shimon Moalem, (“Plaintiff”), filed a 11 Response, (ECF No. 26), and Defendant filed a Reply, (ECF No. 28). For the reasons 12 discussed below, Defendant’s Motion for Summary Judgment is DENIED without prejudice 13 as unripe. 14 This case commenced on December 10, 2018, upon Plaintiff’s filing of the Complaint, 15 (ECF No. 1). On January 28, 2019, Defendant filed the Motion to Dismiss, alleging that the 16 Court did not have subject matter jurisdiction over the action because the Complaint did not 17 plead the jurisdictional minimum amount in controversy required under 28 U.S.C. § 1332. 18 (Mot. Dismiss 3:12–5:12). With the Motion to Dismiss pending, the parties submitted, and the 19 Court approved, the Scheduling Order, (ECF No. 17). The Scheduling Order established 20 August 26, 2019, as the deadline to file dispositive motions. (Id. ¶ 4). 21 On August 11, 2019, the Court granted Defendant’s Motion to Dismiss, (Order, ECF 22 No. 20). The Order dismissed the Complaint without prejudice and provided Plaintiff twenty- 23 one days from the entry of the Order to file an Amended Complaint to correct the deficient 24 pleading of subject matter jurisdiction. (Id. at 5:11–15). Assuming that Plaintiff would so file 25 an amended complaint, but before any operative complaint had been filed, Defendant filed the 1 Motion for Summary Judgment on August 26, 2019, which responds to the merits of the 2 Complaint that had been dismissed. (Mot. Summary Judgment (“MSJ”), ECF No. 21). 3 Defendant explains that it filed the Motion in order to comply with the Scheduling Order’s 4 deadline to file dispositive motions. (MSJ Reply 3:3–4, ECF No. 28). On August 27, 2019, 5 Plaintiff filed the Amended Complaint. (Am. Compl., ECF No. 23). 6 The Court is not convinced that it may grant a motion for summary judgment filed prior 7 to an operative complaint, and it therefore denies Defendant’s Motion. A Court generally 8 cannot grant a motion for summary judgment when the subject complaint has already been 9 dismissed. Cf. Donell v. Braun, 546 F. Supp. 2d 1013, 1016 (D. Nev. 2008) (denying 10 defendant’s motion for summary judgment as moot after granting its motion to dismiss for 11 failure to properly plead subject matter jurisdiction and personal jurisdiction). Defendant could 12 have sought an extension of the Scheduling Order’s deadline under Federal Rule of Civil 13 Procedure 16(b)(4) because it was not possible to file a timely dispositive motion within the 14 deadline established by the Scheduling Order. See Fed. R. Civ. P. 16(b) (allowing amendment 15 to the scheduling order for “good cause”); see also Sharp v. Covenant Care LLC, 288 F.R.D. 16 465, 467 (S.D. Cal. 2012) (“good cause may be found where the moving party shows . . . that it 17 is unable to comply with the scheduling order’s deadlines . . . .”). Given that Defendant 18 diligently filed its Motion to comply with the Court’s deadline, the Court will provide 19 Defendant the opportunity to refile a motion for summary judgment regarding the Amended 20 Complaint. Cf. Gundy v. Cal. Dep’t of Corr. & Rehab., No. 1:12–cv–1020–MJS, 2014 U.S. 21 Dist. LEXIS 10455 at *6 (E.D. Cal. 2014) (Modifying the scheduling order sua sponte to allow 22 leave to amend for good cause).

23 // 24 // 25 // 1 Accordingly, 2 IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment, (ECF 3 No. 21), is DENIED without prejudice as unripe. 4 IT IS FURTHER ORDERED that the Court sua sponte amends the Scheduling Order, 5 (ECF No. 17), for good cause. The parties shall have twenty-one (21) days from the date of 6 this Order to file motions for summary judgment regarding the Amended Complaint. 7 DATED this _1_3___ day of January, 2020. 8 9 10 ___________________________________ Gloria M. Navarro, District Judge 11 United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25