Vashisht-Rota v. Howell Management Services

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 APARNA VASHISHT-ROTA, an Case No.: 20-CV-321 TWR (KSC) individual, 12 ORDER (1) GRANTING Plaintiff, 13 PLAINTIFF’S LEAVE TO FILE v. THIRD AMENDED COMPLAINT, 14 (2) DENYING PLAINTIFF’S HOWELL MANAGEMENT SERVICES, 15 MOTION TO STAY, (3) DENYING a Utah limited liability company; CHRIS WITHOUT PREJUDICE 16 HOWELL, an individual; and JUSTIN PLAINTIFF’S MOTION FOR SPENCER, an individual, 17 SUMMARY JUDGMENT, AND (4) Defendants. DENYING AS MOOT 18 DEFENDANTS’ MOTION TO 19 DISMISS

20 (ECF Nos. 21, 80, 93, 94) 21

22 Presently before the Court are Plaintiff Aparna Vashisht-Rota’s Motions for Leave 23 to File a Third Amended Complaint (“Mot. to Amend,” ECF No. 80), to Stay (“Mot. to 24 Stay,” ECF No. 93), and for Summary Judgment (“MSJ,” ECF No. 94) and Defendants 25 Howell Management Services and Chris Howell’s Motion to Dismiss (“Mot. to Dismiss,” 26 ECF No. 21). The Court VACATES the hearing set for November 4, 2020, and takes the 27 matters under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). 28 Having carefully considered the Parties’ arguments and the law, the Court GRANTS 1 Plaintiff’s Motion to Amend, DENIES Plaintiff’s Motion to Stay, DENIES WITHOUT 2 PREJUDICE Plaintiff’s Motion for Summary Judgment, and DENIES AS MOOT 3 Defendants’ Motion to Dismiss. 4 BACKGROUND 5 I. Motions to Amend the Complaint 6 On February 19, 2020, Plaintiff, proceeding pro se, filed a Complaint (ECF No. 1). 7 Generally, Plaintiff alleges causes of action for (1) violation of Business and Professions 8 Code § 17200; (2) unfair competition; (3) fraud; (4) false promises; and (5) unpaid wages 9 and expenses and seeks among other things, declaratory relief, equitable relief, and 10 damages. 11 On March 20, 2020, Plaintiff filed an Amended Complaint (ECF No. 13), to which 12 Defendants filed a Motion to Dismiss (ECF No. 21). 13 On August 9, 2020, Plaintiff filed a Motion for Leave to File a Second Amended 14 Complaint seeking to add four causes of actions for (1) theft by false pretenses in violation 15 of California Penal Code § 532; (2) fraud by wire, radio, or television in violation of section 16 1343 of Title 18 of the United States Code; (3) defamation pursuant to California Civil 17 Code § 44; and (4) pandering in violation of California Penal Code § 266i. (See ECF No. 18 48-1.) On August 10, 2020, the Honorable Janis L. Sammartino denied without prejudice 19 Plaintiff’s Motion for Leave to File a Second Amended Complaint, finding that, with the 20 exception of the defamation claim, the proposed amendments were futile because “[a] 21 private party cannot make a claim for violation of a criminal statute.” (See ECF No. 49.) 22 On September 12, 2020, Plaintiff filed a Motion for Leave to File a Third Amended 23 Complaint, (ECF No. 76), and, on September 14, 2020, filed the instant Motion to Amend 24 (ECF No. 80). 25 II. Motions for Summary Judgment 26 On May 6, 2020, Plaintiff filed Ex Parte Motions for Summary Judgment to Obtain 27 Judgment for Invoices Due Pursuant to Second Agreement Section 9(a)(b) and Interest Due 28 for Late Payment as per 9(c), (ECF No. 34), and for Invoices Due Pursuant to Second 1 Agreement Section 8(a) and Interest Due for Late Payment as per 8(b) and Adjustments as 2 per 8(d) (ECF No. 35), which Judge Sammartino denied as premature pursuant to Federal 3 Rule of Civil Procedure 56(d) (see ECF No. 36). On September 22, 2020, Plaintiff filed 4 the instant Motion for Summary Judgment. (ECF No. 94.) 5 III. Motions to Stay 6 On September 17, 2020, Plaintiff filed a Motion to Stay Order in Case No. 7 170100325, (ECF No. 83), which Judge Sammartino denied (ECF No. 87). On September 8 19, 2020, Plaintiff filed a Motion for Reconsideration, (ECF No. 90), which Judge 9 Sammartino also denied, without prejudice (ECF No. 92). On September 22, 2020, 10 Plaintiff filed the instant Motion to Stay. (ECF No. 93.) 11 MOTION TO AMEND 12 I. Legal Standard 13 Under Federal Rule of Civil Procedure 15(a), a plaintiff may amend his or her 14 complaint once as a matter of course within specified time limits. Fed. R. Civ. P. 15(a)(1). 15 “In all other cases, a party may amend its pleading only with the opposing party’s written 16 consent or the court’s leave. The court should freely give leave when justice so requires.” 17 Fed. R. Civ. P. 15(a)(2). 18 “Rule 15’s policy of favoring amendments to pleadings should be applied with 19 ‘extreme liberality,’” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (citing 20 Rosenberg Brothers & Co. v. Arnold, 283 F.2d 406 (9th Cir. 1960) (per curiam)), and its 21 application is committed to “the sound discretion of the trial court.” Id. (citing PSG Co. v. 22 Merrill Lynch, Pierce, Fenner & Smith, Inc., 417 F.2d 659, 664 (9th Cir. 1969), cert. 23 denied, 397 U.S. 918 (1970)). The Supreme Court has cautioned that courts generally 24 should grant leave to amend absent a showing of “undue delay, bad faith or dilatory motive 25 on the part of the movant, repeated failure to cure deficiencies by amendments previously 26 allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, 27 [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Rule 15(a) ‘is to 28 be applied with extreme liberality,’ and whether to permit amendment is a decision 1 ‘entrusted to the sound discretion of the trial court.’” EFG Bank AG, Cayman Branch v. 2 Transamerica Life Ins. Co., No. 216CV08104CASGJSX, 2019 WL 5784739, at *3 (C.D. 3 Cal. Nov. 4, 2019) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 4 1079 (9th Cir. 1990); Jordan v. Cty. of Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982)). 5 The non-moving party bears the burden of showing why leave to amend should not 6 be granted. Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530–31 (N.D. Cal. 1989). 7 II. Analysis 8 In the Motion to Amend, Plaintiff seeks to add two causes of action for 9 (1) defamation pursuant to California Civil Code § 44 and (2) violation of Rico Influenced 10 and Corrupt Violations Act (“RICO”) pursuant to section 1964 of Title 18 of the United 11 States Code. (See generally ECF No. 80.) Defendants oppose on the grounds that 12 Plaintiff’s proposed amendments are futile because all of Plaintiff’s claims are compulsory 13 counterclaims in the Utah Case, forum non conveniens dictates that the Court should

14 dismiss this case, the claim splitting doctrine bars Plaintiff’s claims, and Plaintiff’s 15 defamation and RICO claims are not sufficiently pleaded. (See ECF No. 101 at 16–25.) 16 Courts ordinarily do not consider the validity of a proposed amended pleading in 17 deciding whether to grant leave to amend, and instead defer consideration of challenges to 18 the merits of a proposed amendment until after leave to amend is granted and the amended 19 pleadings are filed. Netbula, LLC v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003) 20 (citation omitted); accord Green Valley Corp. v. Caldo Oil Co., No. 09cv4028-LHK, 2011 21 WL 1465883, at *6 (N.D. Cal. Apr. 18, 2011) (noting “the general preference against 22 denying a motion for leave to amend based on futility”). Consequently, Defendants’ 23 arguments concerning the sufficiency of Plaintiff’s proposed amendments are better left 24 for briefing on a motion to dismiss. See Lillis v. Apria Healthcare, No. 12cv52-IEG (KSC), 25 2012 WL 4760908, at * 1 (S.D. Cal. Oct. 5, 2012) (finding that the defendants’ argument 26 as to the sufficiency of plaintiffs’ proposed pleadings, even if merited, remain better left 27 for full briefing on a motion to dismiss). Accordingly, the Court GRANTS Plaintiff’s 28 Motion to Amend and DENIES AS MOOT Defendant’s Motion to Dismiss. 1 MOTION TO STAY 2 Plaintiff has several actions against Defendants pending in state court. Plaintiff 3 requests that the Court issue “an order staying any further proceedings in any matter related 4 to the California employment pending resolution of this instant action.” (See Mot. to Stay 5 at 1.) “A court of the United States may not grant an injunction to stay proceedings in a 6 State court except as expressly authorized by Act of Congress, or where necessary in aid 7 of its jurisdiction, or to protect or effectuate its judgments.” Bennett v. Medtronic, Inc., 8 285 F.3d 801, 805 (9th Cir. 2002) (quoting 28 U.S.C. § 2283). As Defendants contend, 9 Plaintiff “has not and cannot show that any of the three specifically defined exceptions to 10 the Act apply to her request.” (See Opp’n to Mot. to Stay at 8.) Accordingly, the Court 11 DENIES Plaintiff’s Motion to Stay. 12 MOTION FOR SUMMARY JUDGMENT 13 Plaintiff seeks summary adjudication as to the fifth cause of action for unpaid wages 14 and out of pocket expenses. (See MSJ at 4–6.) “Although [Federal Rule of Civil 15 Procedure] Rule 56 allows a party to file a motion for summary judgment ‘at any time,’ 16 the rule also allows the court, as is just, to deny the motion or order a continuance for the 17 opposing party to pursue discovery.” Gordon v. Marquez, No. 118CV01223DADSABPC, 18 2019 WL 1017323, at *1 (E.D. Cal. Mar. 4, 2019) (citing Fed. R. Civ. P. 56). Indeed, 19 courts have denied pre-answer and pre-discovery motions for summary judgment as 20 premature. See Williams v. Yuan Chen, No. S–10–1292 CKD P, 2011 WL 4354533, at *3 21 (E.D. Cal. Sept. 16, 2011) (denying the plaintiff's motion for summary judgment as 22 premature where the defendant had not yet filed an answer and the court had not issued a 23 discovery order); see also Waters v. Experian Info. Solutions, Inc., Case No. 12–cv–0308– 24 AJB (RBB), 2012 WL 1965333, at *4 n. 2 (S.D. Cal. May 31, 2012) (“This Court typically 25 finds pre-answer summary judgments premature and unhelpful.”); Moore v. Hubbard, No. 26 Civ S-06-2187 FCD EFB P, 2009 WL 688897, at *1 (E.D. Cal. Mar. 13, 2009) 27 (recommending the plaintiff's motion for summary judgment be denied as premature where 28 “discovery has not yet begun, defendants have not yet filed an answer and the court has yet 1 || to issue a discovery and scheduling order’); Code Rebel LLC v. Aqua Connect Inc., No. 2 || CV1304539RSWLMANX, 2014 WL 12569460, at *1 (C.D. Cal. Feb. 12, 2014) (sua 3 || sponte denying without prejudice motion for summary judgment as premature pursuant to 4 || Federal Rule of Civil Procedure 56(d)). 5 This case is still at the pleading stage, as evidenced by the Court’s decision to grant 6 || Plaintiff leave to file an amended complaint. Further, as Defendants contend, (see Opp’n 7 ||to MSJ at 10), Plaintiff has conducted no discovery in this matter and Defendants have yet 8 ||to file an answer to Plaintiff's complaint. Accordingly, the Court DENIES WITHOUT 9 || PREJUDICE Plaintiffs Motion for Summary Judgment on the ground that it is premature. 10 CONCLUSION 11 In light of the foregoing, the Court GRANTS Plaintiff's Motion to Amend (ECF 12 ||No. 80), DENIES Plaintiff's Motion to Stay (ECF No. 93), DENIES WITHOUT 13 ||} PREJUDICE Plaintiff's Motion for Summary Judgment (ECF No. 94), and DENIES AS 14 || MOOT Defendant’s Motion to Dismiss (ECF No. 21). Plaintiff SHALL FILE the Third 15 || Amended Complaint within three (3) court days of the electronic docketing of this Order. 16 IT IS SO ORDERED. 17 18 . Dated: October 30, 2020 Tad 12, bmw 0 Honorable Todd W. Robinson 4 United States District Court

22 23 24 25 26 27 28