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6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NOVALK, LLC, a California limited ) Case No.: 3:21-cv-973-BEN-LL 12 liability company, ) 13 Plaintiff, ) ORDER ON JOINT MOTION (1) ) REGARDING FILING OF 14 v. ) AMENDED COMPLAINT AND (2) ) TO EXTEND DEADLINE FOR 15 SEDGWICK; JESUS MONTIJO; and ) SEDGWICK CLAIMS DOES 1-100, 16 ) MANAGEMENT SERVICES, INC. Defendant. ) TO FILE RESPONSIVE PLEADING 17 ) 18 ) [ECF No. 5] 19 I. INTRODUCTION 20 Plaintiff Novalk, LLC (“Plaintiff”) brings this action against its insurer, Defendant 21 Sedgwick Claims Management Services, Inc., erroneously sued as Sedgwick 22 (“Sedgwick”), and Defendant Jesus Montijo (“Mr. Montijo”) for alleged breaches of 23 Sedgwick’s agreement to insure Plaintiff. ECF No. 1.1 24 Before the Court is the Joint Motion of Plaintiff and Sedgwick (1) Regarding the 25 Filing of a First Amended Complaint and (2) to Extend Sedwick’s Deadline to File a 26 Responsive Pleading (the “Joint Motion”). ECF No. 5. After considering the papers 27 1 Unless otherwise indicated, all page number references are to the ECF generated 28 1 submitted, supporting documentation, and applicable law, the Court GRANTS IN PART 2 the Joint Motion. 3 II. BACKGROUND 4 A. Statement of Facts 5 Plaintiff alleges that it owns certain real estate located at 310 Rockwood Avenue, 6 Calexico, California, which Defendant Sedgwick insured. ECF No. 1-2 at 3, ¶ 1, 5, ¶ 10. 7 B. Procedural History 8 On March 9, 2021, Plaintiff filed suit in the Superior Court of the State of California 9 in and for the County of Imperial styled Novalk, LLC v. Sedgwick; Jesus Montijo; and 10 Does 1-100, bearing Case No. ECU001800 (the “State Court Action”). ECF No. 5 at 1, 11 ¶ 1; see also Notice of Removal, ECF No. 1 (“NOR”) at 1. The complaint in the State 12 Court Action alleged causes of action for (1) breach of contract; (2) negligent 13 misrepresentation; (3) declaratory relief; (4) specific performance; (5) unjust enrichment; 14 (6) bad faith; (7) fraud; (8) violation of the Unfair Competition Law; (9) false advertising; 15 and (10) injunctive relief. ECF No. 1-2 at 12, 16 On April 23, 2021, Plaintiff served Sedgwick with the complaint. ECF No. 5 at 1, 17 ¶ 2. However, Plaintiff still has not served Defendant Jesus Montijo.2 Id. 18 On May 18, 2021, Sedgwick initiated a meet and confer regarding the pleading 19
20 2 “The plaintiff is responsible for having the summons and complaint served within 21 the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” FED. R. CIV. P. 4(c)(1). “If a defendant is not served within 90 days after 22 the complaint is filed, the court—on motion or on its own after notice to the plaintiff— 23 must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” FED. R. CIV. P. 4(m); see also States S. S. Co. v. Philippine 24 Air Lines, 426 F.2d 803, 804 (9th Cir. 1970) (affirming “[t]hat a court has power to dismiss 25 an action for want of prosecution on its own motion, both under Rule 41 (b), Fed. R. Civ. P., or under its local rule, or even in the absence of such rules, is settled in this circuit”). 26 Here, the Court encourages Plaintiff to bear in mind Rule 4(m) by timely effectuating 27 service of process on Mr. Montijo. Additionally, the Court notes that Plaintiff’s complaint contains no specific allegations as to Mr. Montijo. In fact, the complaint fails to specific 28 1 deficiencies in the Complaint. ECF No. 5 at 2, ¶ 4. 2 On May 21, 2021, Sedgwick removed this action to this Court. ECF No. 5 at 2, ¶ 3 4; see also ECF No. 1. 4 As a result of the notice of removal, Sedgwick is presently required to file a 5 response to the Complaint by May 28, 2021. ECF No. 5 at 2, ¶ 6. 6 On May 27, 2021, counsel for Plaintiff and Sedgwick conducted a meet and confer 7 during which Plaintiff’s counsel advised that it planned to amend its Complaint on or 8 before June 7, 2021. ECF No. 5 at 2, ¶ 7. Counsel for both Plaintiff and Sedgwick 9 (collectively, the “Parties”) agree that Sedgwick’s responsive pleading deadline should 10 be extended from May 28, 2021 to June 21, 2021 in order to allow counsel for Novalk to 11 file an amended complaint. ECF No. 5 at 2, ¶ 8. 12 III. LEGAL STANDARD 13 A. Joint Motion 14 “Except as otherwise provided, stipulations must be recognized as binding on the 15 Court only when approved by the judge.” S.D. Cal. Civ. R. 7.2(a). Such stipulations “must 16 first be filed as a ‘joint motion,’” which require neither a hearing date for the motion nor a 17 “a separate points and authorities or declaration unless required by the nature of the motion 18 or requested by the assigned judicial officer.” S.D. Cal. Civ. R. 7.2(b). 19 B. Motion for Leave to Amend 20 Once a responsive pleading is filed, a plaintiff can amend a complaint “only with the 21 opposing party’s written consent or the court’s leave.” FED. R. CIV. P. 15(a)(2). “The court 22 should freely give leave when justice so requires.” Id.; see also Morongo Band of Mission 23 Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990) (stating that leave to amend is to be 24 granted with “extreme liberality”). 25 C. Motion to Extend Deadline to File a Responsive Pleading 26 Rule 12 of the Federal Rules of Civil Procedure requires a defendant to file a 27 responsive pleading within either (1) twenty-one days of being served with the summons 28 and complaint or (2) sixty days after the request for a waiver was sent. Pursuant to the 1 Local Rules, “[e]xtensions of time for answering, or moving to dismiss a complaint will 2 only be secured by obtaining the approval of a judicial officer, who will base the decision 3 on a showing of good case.” S.D. Cal. Civ. R. 12.1. Thus, “[i]n the Southern District, 4 court approval is required for any extension of time to answer or move to dismiss the 5 complaint.” Phillips, Virginia A., et al., Rutter Group Prac. Guide: Fed. Civ. Pro. Before 6 Trial, § 8:913 (The Rutter Group April 2020). 7 IV. DISCUSSION 8 The Parties advise that they both agree to Plaintiff filing a First Amended 9 Complaint, and on that basis ask the Court to extend the responsive pleading deadline. 10 However, Rule 15 of the Federal Rules of Civil Procedure (“Rule 15”) allows a party to 11 amend a pleading “once as a matter of course,” or without leave of Court, within 21 days 12 after (1) serving the complaint or (2) service of a responsive pleading. FED. R. CIV. P. 13 15(a)(1). Further, Rule 15 also states that “[i]n all other case, a party may amend its 14 pleading only with either (1) the opposing party’s written consent or (2) the court’s leave. 15 FED. R. CIV. P. 15(a)(2). In other words, in a case such as this one, where no responsive 16 pleading has been filed, and the opposing party consents to the plaintiff amending the 17 complaint, leave of court is not required to amend the complaint. However, the Court 18 notes that Plaintiff has named Does 1 through 100 in this lawsuit, which is improper. 19 While the original complaint was filed in the superior court, where the practice of 20 pleading “doe defendants” is permitted under California’s code pleading standard, the 21
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6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NOVALK, LLC, a California limited ) Case No.: 3:21-cv-973-BEN-LL 12 liability company, ) 13 Plaintiff, ) ORDER ON JOINT MOTION (1) ) REGARDING FILING OF 14 v. ) AMENDED COMPLAINT AND (2) ) TO EXTEND DEADLINE FOR 15 SEDGWICK; JESUS MONTIJO; and ) SEDGWICK CLAIMS DOES 1-100, 16 ) MANAGEMENT SERVICES, INC. Defendant. ) TO FILE RESPONSIVE PLEADING 17 ) 18 ) [ECF No. 5] 19 I. INTRODUCTION 20 Plaintiff Novalk, LLC (“Plaintiff”) brings this action against its insurer, Defendant 21 Sedgwick Claims Management Services, Inc., erroneously sued as Sedgwick 22 (“Sedgwick”), and Defendant Jesus Montijo (“Mr. Montijo”) for alleged breaches of 23 Sedgwick’s agreement to insure Plaintiff. ECF No. 1.1 24 Before the Court is the Joint Motion of Plaintiff and Sedgwick (1) Regarding the 25 Filing of a First Amended Complaint and (2) to Extend Sedwick’s Deadline to File a 26 Responsive Pleading (the “Joint Motion”). ECF No. 5. After considering the papers 27 1 Unless otherwise indicated, all page number references are to the ECF generated 28 1 submitted, supporting documentation, and applicable law, the Court GRANTS IN PART 2 the Joint Motion. 3 II. BACKGROUND 4 A. Statement of Facts 5 Plaintiff alleges that it owns certain real estate located at 310 Rockwood Avenue, 6 Calexico, California, which Defendant Sedgwick insured. ECF No. 1-2 at 3, ¶ 1, 5, ¶ 10. 7 B. Procedural History 8 On March 9, 2021, Plaintiff filed suit in the Superior Court of the State of California 9 in and for the County of Imperial styled Novalk, LLC v. Sedgwick; Jesus Montijo; and 10 Does 1-100, bearing Case No. ECU001800 (the “State Court Action”). ECF No. 5 at 1, 11 ¶ 1; see also Notice of Removal, ECF No. 1 (“NOR”) at 1. The complaint in the State 12 Court Action alleged causes of action for (1) breach of contract; (2) negligent 13 misrepresentation; (3) declaratory relief; (4) specific performance; (5) unjust enrichment; 14 (6) bad faith; (7) fraud; (8) violation of the Unfair Competition Law; (9) false advertising; 15 and (10) injunctive relief. ECF No. 1-2 at 12, 16 On April 23, 2021, Plaintiff served Sedgwick with the complaint. ECF No. 5 at 1, 17 ¶ 2. However, Plaintiff still has not served Defendant Jesus Montijo.2 Id. 18 On May 18, 2021, Sedgwick initiated a meet and confer regarding the pleading 19
20 2 “The plaintiff is responsible for having the summons and complaint served within 21 the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” FED. R. CIV. P. 4(c)(1). “If a defendant is not served within 90 days after 22 the complaint is filed, the court—on motion or on its own after notice to the plaintiff— 23 must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” FED. R. CIV. P. 4(m); see also States S. S. Co. v. Philippine 24 Air Lines, 426 F.2d 803, 804 (9th Cir. 1970) (affirming “[t]hat a court has power to dismiss 25 an action for want of prosecution on its own motion, both under Rule 41 (b), Fed. R. Civ. P., or under its local rule, or even in the absence of such rules, is settled in this circuit”). 26 Here, the Court encourages Plaintiff to bear in mind Rule 4(m) by timely effectuating 27 service of process on Mr. Montijo. Additionally, the Court notes that Plaintiff’s complaint contains no specific allegations as to Mr. Montijo. In fact, the complaint fails to specific 28 1 deficiencies in the Complaint. ECF No. 5 at 2, ¶ 4. 2 On May 21, 2021, Sedgwick removed this action to this Court. ECF No. 5 at 2, ¶ 3 4; see also ECF No. 1. 4 As a result of the notice of removal, Sedgwick is presently required to file a 5 response to the Complaint by May 28, 2021. ECF No. 5 at 2, ¶ 6. 6 On May 27, 2021, counsel for Plaintiff and Sedgwick conducted a meet and confer 7 during which Plaintiff’s counsel advised that it planned to amend its Complaint on or 8 before June 7, 2021. ECF No. 5 at 2, ¶ 7. Counsel for both Plaintiff and Sedgwick 9 (collectively, the “Parties”) agree that Sedgwick’s responsive pleading deadline should 10 be extended from May 28, 2021 to June 21, 2021 in order to allow counsel for Novalk to 11 file an amended complaint. ECF No. 5 at 2, ¶ 8. 12 III. LEGAL STANDARD 13 A. Joint Motion 14 “Except as otherwise provided, stipulations must be recognized as binding on the 15 Court only when approved by the judge.” S.D. Cal. Civ. R. 7.2(a). Such stipulations “must 16 first be filed as a ‘joint motion,’” which require neither a hearing date for the motion nor a 17 “a separate points and authorities or declaration unless required by the nature of the motion 18 or requested by the assigned judicial officer.” S.D. Cal. Civ. R. 7.2(b). 19 B. Motion for Leave to Amend 20 Once a responsive pleading is filed, a plaintiff can amend a complaint “only with the 21 opposing party’s written consent or the court’s leave.” FED. R. CIV. P. 15(a)(2). “The court 22 should freely give leave when justice so requires.” Id.; see also Morongo Band of Mission 23 Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990) (stating that leave to amend is to be 24 granted with “extreme liberality”). 25 C. Motion to Extend Deadline to File a Responsive Pleading 26 Rule 12 of the Federal Rules of Civil Procedure requires a defendant to file a 27 responsive pleading within either (1) twenty-one days of being served with the summons 28 and complaint or (2) sixty days after the request for a waiver was sent. Pursuant to the 1 Local Rules, “[e]xtensions of time for answering, or moving to dismiss a complaint will 2 only be secured by obtaining the approval of a judicial officer, who will base the decision 3 on a showing of good case.” S.D. Cal. Civ. R. 12.1. Thus, “[i]n the Southern District, 4 court approval is required for any extension of time to answer or move to dismiss the 5 complaint.” Phillips, Virginia A., et al., Rutter Group Prac. Guide: Fed. Civ. Pro. Before 6 Trial, § 8:913 (The Rutter Group April 2020). 7 IV. DISCUSSION 8 The Parties advise that they both agree to Plaintiff filing a First Amended 9 Complaint, and on that basis ask the Court to extend the responsive pleading deadline. 10 However, Rule 15 of the Federal Rules of Civil Procedure (“Rule 15”) allows a party to 11 amend a pleading “once as a matter of course,” or without leave of Court, within 21 days 12 after (1) serving the complaint or (2) service of a responsive pleading. FED. R. CIV. P. 13 15(a)(1). Further, Rule 15 also states that “[i]n all other case, a party may amend its 14 pleading only with either (1) the opposing party’s written consent or (2) the court’s leave. 15 FED. R. CIV. P. 15(a)(2). In other words, in a case such as this one, where no responsive 16 pleading has been filed, and the opposing party consents to the plaintiff amending the 17 complaint, leave of court is not required to amend the complaint. However, the Court 18 notes that Plaintiff has named Does 1 through 100 in this lawsuit, which is improper. 19 While the original complaint was filed in the superior court, where the practice of 20 pleading “doe defendants” is permitted under California’s code pleading standard, the 21 Federal Rules of Civil Procedure (“FRCP”) neither authorize nor prohibit the use of 22 fictitious parties. Indian Hills Holdings, LLC v. Frye, No. 320CV00461BENAHG, 2021 23 WL 1139419, at *9 (S.D. Cal. Mar. 25, 2021). However, FRCP 10 does require a plaintiff 24 to include the names of all parties in his complaint. See Keavney v. Cty. of San Diego, No. 25 319CV01947AJBBGS, 2020 WL 4192286, at *4-5 (S.D. Cal. July 21, 2020) (Battaglia, 26 J.) (citing FED. R. CIV. P. 10(a)). Further, naming doe defendants implicates Rule 4 27 requiring service of the complaint. Id. (noting that “it is effectively impossible for the 28 United States Marshal or deputy marshal to fulfill his or her duty to serve an unnamed 1 defendant”); Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates, 2018 WL 3580764, 2 at *6 (D. Haw. July 25, 2018) (same). “A plaintiff may refer to unknown defendants as 3 Defendant John Doe 1, John Doe 2, John Doe 3, and so on, but he must allege specific 4 facts showing how each particular doe defendant violated his rights.” Keavney, 2020 WL 5 4192286 at *4-5. Where a plaintiff fails to link the alleged wrong or explain how any of 6 the unidentified parties he sued personally caused a violation of his rights, the court must 7 dismiss those individuals, especially when they have not been served. See, e.g., FED. R. 8 CIV. P. 4(m) (providing that “[i]f a defendant is not served within 90 days after the 9 complaint is filed, the court—on motion or on its own after notice to the plaintiff—must 10 dismiss the action without prejudice against that defendant or order that service be made 11 within a specified time.”); see also S.D. Cal. Civ. R. 41.1(a); Keavney, 2020 WL 4192286 12 at *4-5 (dismissing the plaintiff’s first amended complaint). 13 Even if the FRCP permitted doe defendant pleading, Plaintiff would still need to 14 seek leave of court in order to substitute in the true names of those defendants unless the 15 other party consents to the addition to the new party. As such, the Court dismisses the doe 16 defendants. Plaintiff may seek leave of court to file an amended complaint adding other 17 defendants, if and when necessary, or if the opposing party consents, Plaintiff may simply 18 file the amended complaint. 19 As to Defendant’s request to extend the time to respond to the complaint, Rule 20 15(a)(3) provides that “[u]nless the court orders otherwise, any required response to an 21 amended pleading must be made within” the later of either (1) the time remaining to 22 respond to the original pleading or (2) fourteen (14) days after service of the amended 23 pleading. In this case, if Plaintiff serves the amended complaint on June 7, 2021, fourteen 24 (14) days after service of the amended complaint would be Monday, June 21, 2021. As 25 such, Defendant need not request an extension of time to respond because Rule 15(a)(3) 26 provides for the time Defendant seeks. 27 V. CONCLUSION 28 For the above reasons, the Court GRANTS the Joint Motion and instructs Plaintiff 1 || to file the First Amended Complaint on the docket by Monday, June 7, 2021. However, 2 || all doe defendants must be removed from the First Amended Complaint prior to filing it 3 ||on the docket. Defendant must file a responsive pleading by Monday, June 21, 2021. 4 IT ISSO ORDERED. DATED: May 28, 2021 6 ON. ROGER T. BENITE 4 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-