Valle v. B&R Lyles Enterprises LLC ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Valerie Valle, et al., No. CV-20-01513-PHX-DWL 10 Plaintiffs, ORDER 11 v. 12 B & R Lyles Enterprises LLC, et al., 13 Defendants. 14 15 On September 14, 2020, the parties filed a stipulation seeking a second extension of 16 time for Defendants to respond to the complaint. (Doc. 16.) On September 15, 2020, 17 Plaintiffs filed an amended complaint (Doc. 17) and a “Notice of Filing First Amended 18 Co[mp]laint” pursuant to LRCiv 15.1(b). (Doc. 18.) 19 Pursuant to LRCiv 15.1(b), a party amending as a matter of course or with the 20 opposing parties’ consent must file a notice of filing the amended pleading. Here, the 21 notice does not indicate whether the amended complaint was intended to be filed as a matter 22 of course or with the opposing parties’ written consent. If it was the latter, the notice failed 23 to certify that the amendment is filed with Defendants’ written consent, as is required by 24 LRCiv 15.1(b). 25 If it was the former—that is, if the amended complaint was intended to be filed “as 26 a matter of course”—that option is not currently available to Plaintiffs. Rule 15(a)(1) of 27 the Federal Rules of Civil Procedure provides that “[a] party may amend its pleading once 28 as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to 1 which a responsive pleading is required, 21 days after service of a responsive pleading or 2 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Here, 3 service was effected as to all three Defendants on August 2, 2020 (Docs. 7, 8, 9), so more 4 than 21 days has elapsed since service. And no Defendant has filed a responsive pleading 5 or a Rule 12(b), (e), or (f) motion, so Rule 15(a)(1)(A) is as-of-yet inapplicable. Servin v. 6 FCA US, LLC, 2020 WL 2468766, *1 (C.D. Cal. 2020). 7 Thus, Plaintiffs must either obtain Defendants’ written consent to amend or file a 8 motion for leave to amend,1 or they can wait to see if Defendants will respond in a manner 9 that will open the Rule 15(a)(1)(A) window for amendment as a matter of course. 10 Had the amended complaint been properly filed at this time (e.g., had it certified 11 that it was filed with Defendants’ written consent), the parties’ stipulation for an extension 12 of time for Defendants to respond to the original complaint would be moot. But although 13 the amended complaint likely will soon be properly filed, it has not been properly filed yet. 14 Therefore, the stipulation will be granted. 15 The amended complaint (Doc. 17) and notice of filing (Doc. 18) shall be struck. 16 Plaintiffs may refile their amended complaint (which will be the “First Amended 17 Complaint,” as the struck one doesn’t count) as soon as they can properly file it pursuant 18 to LRCiv 15.1(b). The notice of filing should clearly indicate whether it is filed pursuant 19 to Rule 15(a)(1)(B) or Rule 15(a)(2), and if it is the latter, it must include the certification 20 required by LRCiv 15.1(b). If Plaintiffs seek Defendants’ written consent but cannot obtain 21 it, they may file a motion pursuant to LRCiv 15.1(a). 22 Accordingly, 23 IT IS ORDERED that the parties’ stipulation seeking a second extension of time 24 for Defendants to respond to the complaint (Doc. 16) is granted. The deadline for 25 Defendants to respond to the complaint is extended to September 28, 2020. 26 … 27 … 28 1 Pursuant to the Court’s preliminary order, Plaintiff should seek Defendants’ written consent before resorting to amendment by motion. Doc. 6 at 2 n.1. 1 IT IS FURTHER ORDERED that the amended complaint (Doc. 17) and notice of filing (Doc. 18) are struck. 3 Dated this 16th day of September, 2020. 4 5 om ee 6 f t _o—— Dominic W. Lanza 7 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 -3-