1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 JUSTIN OCAMPO, 8 Case No. 5:20-cv-05857-EJD Plaintiff, 9 ORDER DENYING DEFENDANT’S v. MOTION TO STRIKE 10 APPLE INC., Re: Dkt. No. 27 11 Defendant. 12
13 Before the Court is Defendant Apple Inc.’s Motion to Strike (“Mot.”) Plaintiffs’ Second 14 Amended Complaint (“SAC”). Dkt. No. 27. For the reasons set forth below, the Court DENIES 15 Defendant’s Motion to Strike the Second Amended Complaint. 16 I. BACKGROUND 17 On August 19, 2020, Plaintiff Ocampo, then the sole plaintiff in the matter, filed his initial 18 putative class action complaint for damages alleging causes of action for violations of various 19 consumer fraud and advertising laws. Thereafter, the Parties stipulated that Defendant’s response 20 to or motion to dismiss the original complaint would be due no later than October 26, 2020. See 21 Dkt. No. 13. On October 22, 2020, Plaintiffs’ counsel informed Defendant that they intended to 22 file an amended complaint. See Declaration of David R. Singh (“Singh Decl.”), Dkt. No. 27-1 ¶ 5. 23 The next day the Parties agreed to a stipulation allowing Plaintiff Ocampo to file an amended 24 complaint by November 23, 2020. See Stipulation Regarding Filing Amended Complaint 25 Pursuant to Civil Local Rule 6-1(a) (“Stipulation”), Dkt. No. 20 at 1. Additionally, the Parties 26 stipulated that Defendant did not need to respond to the original complaint and also agreed to a 27 briefing schedule if Defendant were to file a motion to dismiss the amended complaint. Id. 1 Pursuant to the Parties’ Stipulation, Plaintiff Ocampo and the new additionally named 2 plaintiffs filed their First Amended Complaint (“FAC”) on November 23, 2020. Dkt. No. 24. On 3 December 23, 2020, Defendant filed a motion to dismiss all of Plaintiffs’ causes of action for lack 4 of subject-matter jurisdiction and failure to state a claim. See Dkt. No. 25. Twenty-one days later, 5 Plaintiffs filed their SAC without “opposing party’s written consent or the court’s leave.” Fed. R. 6 Civ. P. 15(a)(2). Defendant filed the instant motion to strike in response. 7 II. LEGAL STANDARD 8 Under Federal Rule of Civil Procedure 12(f), on its own or by motion, the Court “may 9 strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or 10 scandalous matter.” Fed. R. Civ. P. 12(f). The purpose of Rule 12(f) is to “avoid the expenditure 11 of time and money that must arise from litigating spurious issues by dispensing with those issues 12 prior to trial. . . .” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). The 13 court must view the pleadings in the light most favorable to the non-moving party. Cal. Dept. of 14 Toxic Substances Control v. Alco Pac. Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). “Any 15 doubt concerning the import of the allegations to be stricken weighs in favor of denying the 16 motion to strike.” In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 614 17 (N.D. Cal. 2007) (citation omitted). 18 III. DISCUSSION 19 Defendant moves to strike Plaintiffs’ SAC arguing Plaintiffs have already amended their 20 original complaint “once as a matter of course” and thus, needed either written consent from 21 Defendant or leave of the Court prior to filing the SAC. Mot. at 1. The Court finds that Plaintiffs’ 22 FAC was an amendment within the meaning of Federal Rule of Civil Procedure 15(a). However, 23 Plaintiffs’ FAC was filed after receiving Defendant’s written consent pursuant to Rule 15(a)(2). 24 Thus, filing the FAC did not exhaust Plaintiffs’ ability to file an amended complaint “as a matter 25 of course” under Rule 15(a)(1). 26 Rule 15(a) provides:
27 (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: 1 (A) 21 days after serving it, or 2 (B) if the pleading is one to which a responsive pleading is 3 required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), 4 whichever is earlier.
5 (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s 6 leave. The court should freely give leave when justice so requires. 7 Fed. R. Civ. P. 15(a). 8 The Ninth Circuit’s decision in Ramirez v. Cty. of San Bernardino, 806 F.3d 1002 (9th Cir. 9 2015), is instructive. There, the plaintiff filed a first amended complaint with the consent of the 10 court pursuant to Rule 15(a)(2). Id. at 1004. Shortly after the first amended complaint was filed, 11 the defendant filed a motion to dismiss. Id. Similar to this case, the plaintiff attempted to file a 12 second amended complaint rather than an opposition to the defendant’s motion to dismiss. Id. 13 The court denied plaintiff’s second amended complaint because leave of court was not sought or 14 granted. Id. The plaintiff appealed this decision and the Ninth Circuit held that a “[p]laintiff’s 15 15(a)(2) amendment, filed first in time, cannot be construed as a waiver or exhaustion of his 16 automatic right to amend under 15(a)(1), so long as that amendment was timely.” Id. at 1008. 17 Rule 15 provides different ways to amend a complaint, and a plaintiff may amend in whatever 18 order he sees fit, so long as he complies with Rule 15. Id. at 1007. The Ninth Circuit further 19 reasoned that “Rule 15 is organized substantively, not chronologically.” Id. Therefore, a plaintiff 20 “may amend in whatever order he sees fit provided he complies with the respective requirements 21 found within 15(a)(1) and 15(a)(2).” Id. 22 Here, Plaintiffs received written consent to file the FAC from Defendant as seen in the 23 Stipulation. Although Defendant argues that the Stipulation was a limited scheduling agreement 24 meant to give Defendant relief from its obligation to respond to the original complaint, it expressly 25 states that the Parties had stipulated and agreed to Plaintiff Ocampo filing the FAC by November 26 23, 2020. Additionally, the Parties made reference to the Stipulation in their subsequent Rule 27 26(f) Report highlighting that “[p]ursuant to the parties’ stipulation to allow Plaintiff to file an 1 amended complaint, Plaintiff intend[ed] on filing an amended complaint by November 23, 2020.” 2 || See Case Management Statement, Dkt. No. 22 at 4. The filing of the FAC did not exhaust 3 || Plaintiffs’ right as a matter of course to later amend after service of a motion under Rule 12(b). 4 || Plaintiffs were permitted to amend the complaint in whatever order, so long as they complied with 5 Rule 15. In this instance, Plaintiffs complied with Rule 15 because Defendant provided written 6 consent to the FAC and afterwards, Plaintiffs filed their SAC. Plaintiffs timely filed their SAC as 7 a matter of course as the SAC was filed twenty-one days after Defendant filed its motion to 8 || dismiss. Therefore, the Court finds Plaintiffs’ SAC was permissible under Rule 15(a). 9 IV. CONCLUSION 10 For the foregoing reasons, the Court DENIES Defendant’s motion to strike Plaintiffs’ 11 Second Amended Complaint.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 JUSTIN OCAMPO, 8 Case No. 5:20-cv-05857-EJD Plaintiff, 9 ORDER DENYING DEFENDANT’S v. MOTION TO STRIKE 10 APPLE INC., Re: Dkt. No. 27 11 Defendant. 12
13 Before the Court is Defendant Apple Inc.’s Motion to Strike (“Mot.”) Plaintiffs’ Second 14 Amended Complaint (“SAC”). Dkt. No. 27. For the reasons set forth below, the Court DENIES 15 Defendant’s Motion to Strike the Second Amended Complaint. 16 I. BACKGROUND 17 On August 19, 2020, Plaintiff Ocampo, then the sole plaintiff in the matter, filed his initial 18 putative class action complaint for damages alleging causes of action for violations of various 19 consumer fraud and advertising laws. Thereafter, the Parties stipulated that Defendant’s response 20 to or motion to dismiss the original complaint would be due no later than October 26, 2020. See 21 Dkt. No. 13. On October 22, 2020, Plaintiffs’ counsel informed Defendant that they intended to 22 file an amended complaint. See Declaration of David R. Singh (“Singh Decl.”), Dkt. No. 27-1 ¶ 5. 23 The next day the Parties agreed to a stipulation allowing Plaintiff Ocampo to file an amended 24 complaint by November 23, 2020. See Stipulation Regarding Filing Amended Complaint 25 Pursuant to Civil Local Rule 6-1(a) (“Stipulation”), Dkt. No. 20 at 1. Additionally, the Parties 26 stipulated that Defendant did not need to respond to the original complaint and also agreed to a 27 briefing schedule if Defendant were to file a motion to dismiss the amended complaint. Id. 1 Pursuant to the Parties’ Stipulation, Plaintiff Ocampo and the new additionally named 2 plaintiffs filed their First Amended Complaint (“FAC”) on November 23, 2020. Dkt. No. 24. On 3 December 23, 2020, Defendant filed a motion to dismiss all of Plaintiffs’ causes of action for lack 4 of subject-matter jurisdiction and failure to state a claim. See Dkt. No. 25. Twenty-one days later, 5 Plaintiffs filed their SAC without “opposing party’s written consent or the court’s leave.” Fed. R. 6 Civ. P. 15(a)(2). Defendant filed the instant motion to strike in response. 7 II. LEGAL STANDARD 8 Under Federal Rule of Civil Procedure 12(f), on its own or by motion, the Court “may 9 strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or 10 scandalous matter.” Fed. R. Civ. P. 12(f). The purpose of Rule 12(f) is to “avoid the expenditure 11 of time and money that must arise from litigating spurious issues by dispensing with those issues 12 prior to trial. . . .” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). The 13 court must view the pleadings in the light most favorable to the non-moving party. Cal. Dept. of 14 Toxic Substances Control v. Alco Pac. Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). “Any 15 doubt concerning the import of the allegations to be stricken weighs in favor of denying the 16 motion to strike.” In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 614 17 (N.D. Cal. 2007) (citation omitted). 18 III. DISCUSSION 19 Defendant moves to strike Plaintiffs’ SAC arguing Plaintiffs have already amended their 20 original complaint “once as a matter of course” and thus, needed either written consent from 21 Defendant or leave of the Court prior to filing the SAC. Mot. at 1. The Court finds that Plaintiffs’ 22 FAC was an amendment within the meaning of Federal Rule of Civil Procedure 15(a). However, 23 Plaintiffs’ FAC was filed after receiving Defendant’s written consent pursuant to Rule 15(a)(2). 24 Thus, filing the FAC did not exhaust Plaintiffs’ ability to file an amended complaint “as a matter 25 of course” under Rule 15(a)(1). 26 Rule 15(a) provides:
27 (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: 1 (A) 21 days after serving it, or 2 (B) if the pleading is one to which a responsive pleading is 3 required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), 4 whichever is earlier.
5 (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s 6 leave. The court should freely give leave when justice so requires. 7 Fed. R. Civ. P. 15(a). 8 The Ninth Circuit’s decision in Ramirez v. Cty. of San Bernardino, 806 F.3d 1002 (9th Cir. 9 2015), is instructive. There, the plaintiff filed a first amended complaint with the consent of the 10 court pursuant to Rule 15(a)(2). Id. at 1004. Shortly after the first amended complaint was filed, 11 the defendant filed a motion to dismiss. Id. Similar to this case, the plaintiff attempted to file a 12 second amended complaint rather than an opposition to the defendant’s motion to dismiss. Id. 13 The court denied plaintiff’s second amended complaint because leave of court was not sought or 14 granted. Id. The plaintiff appealed this decision and the Ninth Circuit held that a “[p]laintiff’s 15 15(a)(2) amendment, filed first in time, cannot be construed as a waiver or exhaustion of his 16 automatic right to amend under 15(a)(1), so long as that amendment was timely.” Id. at 1008. 17 Rule 15 provides different ways to amend a complaint, and a plaintiff may amend in whatever 18 order he sees fit, so long as he complies with Rule 15. Id. at 1007. The Ninth Circuit further 19 reasoned that “Rule 15 is organized substantively, not chronologically.” Id. Therefore, a plaintiff 20 “may amend in whatever order he sees fit provided he complies with the respective requirements 21 found within 15(a)(1) and 15(a)(2).” Id. 22 Here, Plaintiffs received written consent to file the FAC from Defendant as seen in the 23 Stipulation. Although Defendant argues that the Stipulation was a limited scheduling agreement 24 meant to give Defendant relief from its obligation to respond to the original complaint, it expressly 25 states that the Parties had stipulated and agreed to Plaintiff Ocampo filing the FAC by November 26 23, 2020. Additionally, the Parties made reference to the Stipulation in their subsequent Rule 27 26(f) Report highlighting that “[p]ursuant to the parties’ stipulation to allow Plaintiff to file an 1 amended complaint, Plaintiff intend[ed] on filing an amended complaint by November 23, 2020.” 2 || See Case Management Statement, Dkt. No. 22 at 4. The filing of the FAC did not exhaust 3 || Plaintiffs’ right as a matter of course to later amend after service of a motion under Rule 12(b). 4 || Plaintiffs were permitted to amend the complaint in whatever order, so long as they complied with 5 Rule 15. In this instance, Plaintiffs complied with Rule 15 because Defendant provided written 6 consent to the FAC and afterwards, Plaintiffs filed their SAC. Plaintiffs timely filed their SAC as 7 a matter of course as the SAC was filed twenty-one days after Defendant filed its motion to 8 || dismiss. Therefore, the Court finds Plaintiffs’ SAC was permissible under Rule 15(a). 9 IV. CONCLUSION 10 For the foregoing reasons, the Court DENIES Defendant’s motion to strike Plaintiffs’ 11 Second Amended Complaint. Defendant’s Motion to Dismiss the First Amended Complaint is 12 || DENIED as moot and thus, the Second Amended Complaint is the operative complaint. Pursuant g 13 to the Parties’ joint stipulation regarding the Motion to Strike, see Dkt. No. 28, Defendant will 14 || have ten (10) days after the date of this Order to file a responsive pleading. 3 15 IT IS SO ORDERED. 16 Dated: March 2, 2021
EDWARD J. DAVILA 2 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 || Case No.: 5:20-cv-05857-EJD ORDER DENYING DEFENDANT?’S MOTION TO STRIKE