Berkley Assurance Company v. Olam Americas, Inc. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BERKLEY ASSURANCE COMPANY, et No.: 1:22-cv-00904-ADA-SAB al., 12 ORDER ADOPTING FINDINGS AND Plaintiffs, RECOMMENDATIONS, WITHDRAWING 13 MOTION TO DISMISS AND MOTION FOR v. JOINDER FOR FAILURE TO APPEAR, 14 DEEMING FIRST AMENDED COMPLAINT OLAM AMERICAS, INC., et al., OPERATIVE COMPLAINT, AND DEEMING 15 REFILED MOTION TO DISMISS TIMELY Defendants. AS APPLIED TO OPERATIVE COMPLAINT 16 (ECF Nos. 14, 22, 27, 33, 36, 40, 41) 17 18 On July 20, 2022, Plaintiff Berkley Assurance Company filed this action. (ECF No. 1.) 19 On October 18, 2022, Defendant Olam Americas, Inc. (“Olam”), filed a motion to dismiss, and on 20 December 6, 2022, filed a motion for joinder or more definite statement. (ECF Nos. 14, 22.) The 21 United States Magistrate Judge assigned to the case held a hearing on both motions on January 22 11, 2023, at 10:00 a.m. (ECF Nos. 23, 30.) On that same date, the Magistrate Judge issued 23 findings and recommendations, recommending that the motions be deemed withdrawn pursuant 24 to Local Rule 230(i) for the failure of the movant to appear at the hearing. (ECF No. 33.) The 25 findings and recommendations also directed the Clerk of the Court to randomly assign a District 26 Judge to this action, and District Judge Ana de Alba was assigned to the case. (Id. at 5.)1 27 1 Following amendment of the Local Rules effective March 1, 2022, a certain percentage of civil cases 28 shall be directly assigned to a United States Magistrate Judge only, with consent or declination of consent 1 As stated in the findings and recommendations, at the January 11, 2023, hearing, Robert 2 Hinckley and Robin Jung appeared on behalf of the Plaintiffs, and John Flock appeared on behalf 3 of Defendant Smirk’s LTD (“Smirk’s”). (ECF Nos. 30, 33 at 1.) Counsel for Smirk’s did not 4 join in the pending motions. (Id.) No appearances were made on behalf of movant Defendant 5 Olam, and the Court was not notified as to any reason for the nonappearance prior to the hearing. 6 (Id.) 7 As explained in the filings, given the interplay between the two motions, and the first 8 amended complaint filed in the interim period, it was unclear whether the motions were moot, and 9 whether the first amended complaint was properly filed without a stipulation or granting of leave. 10 (ECF No. 33 at 2-5.) The assigned Magistrate Judge wished to discuss this with the parties at the 11 hearing so that it could determine any remaining issues regarding the operative complaint in the 12 action, whether the pending motions were moot, and what issues remained before the Court to 13 adjudicate versus those that the parties were willing to stipulate to for the sake of efficiency. (Id.) 14 Without the moving party present, and no filing made prior to the hearing, the assigned 15 Magistrate Judge recommended withdrawal of the pending motions pursuant to Local Rule 16 230(i).2 17 On the same day that the findings and recommendations were issued, but before they were 18 docketed, Plaintiff Berkley filed a notice clarifying the timeline concerning the filed amended 19 complaint in relation to Federal Rule of Civil Procedure 15. (ECF No. 31.) The filing was not 20 noted in the findings and recommendations, and thus it is not clear whether the assigned 21 Magistrate Judge was aware of the filing before the findings and recommendations were signed. 22 In the findings and recommendation, the Court declined to make determinative conclusions given 23 that Defendant Olam had not been heard on the issue. (See ECF No. 33 at 3-4.) Therein, the 24 forms due within 90 days from the date of filing of the action. L.R. App. A(m)(1). This action was 25 initially directly assigned to a United States Magistrate Judge only. 26 2 The recommendations also noted that “the likely most prudent course of action is for the parties to stipulate to some sort of agreement regarding the filing of the amended complaint and the withdrawal of 27 the pending motions. If that is done, the Court can withdraw the findings and recommendations without burdening a District Judge with consideration of these issues, and without delaying this action through the 28 objection period.” (ECF No. 33 at 4.) 1 Court also gave notice that any objections were to be filed within fourteen (14) days after service. 2 (ECF No. 33 at 5.) 3 On January 25, 2023, Defendant Olam filed objections to the pending findings and 4 recommendations. (ECF No. 36.) Therein, Defendant Olam requested relief from its 5 nonappearance because they mis-calendared the hearing date. (Id. at 1-2.) In the first section of 6 its objections, Olam requested that the recommendations not apply to the motion to dismiss but 7 does proffer that, based on the filing of the first amended complaint, the motion for joinder is 8 indeed rendered moot. (Id. at 2.) In the second section of the objections, Olam argues that 9 because the first amended complaint is essentially the same, the Court should not withdraw the 10 motion but instead rule on the motion to dismiss as applied to the first amended complaint. (Id. at 11 2-4.) In the third section of the objections, Olam submits that the motion for joinder is indeed 12 now moot with the filing of the first amended complaint. (Id. at 4.) 13 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 14 de novo review of the case, including Defendant Olam’s objections. Having carefully reviewed 15 the matter, the Court finds that the findings and recommendations are supported by the record and 16 proper analysis. 17 First, the Court acknowledges the failure to appear was due to a mistake by counsel that 18 was quickly addressed in communications to the Court. However, the Court finds no reason to 19 deviate from the recommendation that the motions be withdrawn for nonappearance, given the 20 Magistrate Judge did not recommend that withdrawal be with prejudice against the ability to file a 21 motion to dismiss the first amended complaint. If the recommendations were implemented the 22 day the recommendations issued, Defendant Olam would still have been within its right to file a 23 responsive pleading to the first amended complaint, as the findings and recommendations issued 24 within twenty-one days of the filing of the first amended complaint. (ECF Nos. 27, 33.) Even if 25 the Court did not adopt the recommendation to withdraw the motions, it would find the motions 26 moot with the filing of the amended complaint. See Falck N. California Corp. v. Scott Griffith 27 Collaborative Sols., LLC, 25 F.4th 763, 765 (9th Cir. 2022) (“The amended complaint made the 28 First Amended Complaint no longer operative.”); Huang v. Genesis Glob. Hardware, Inc., No. 1 220CV1713JAMKJNPS, 2020 WL 6318206, at *1 (E.D. Cal. Oct. 28, 2020) (“This amendment 2 as a matter of course renders an original complaint null, thereby mooting defendants’ motion to 3 dismiss.”); Rhode v. Becerra, No. 18-CV-802-BEN, 2018 WL 11445975, at *1 (S.D. Cal. June 4 18, 2018) (“Plaintiffs’ Amended Complaint supersedes the original Complaint [and] [b]cause the 5 motion to dismiss targets the original complaint which is no longer in effect, the motion to 6 dismiss is deemed moot.”). 7 Regarding amendment, given no apparent objection from Defendants to the filing of the 8 amended complaint, whether deemed an amendment as a matter of course in relation to the filing 9 of the motion for joinder, or whether the Court grants leave to amend in consideration of the 10 standards for amendment under Federal Rule of Civil Procedure 15, the Court shall deem the first 11 amended complaint properly filed and the operative complaint in this action. See Amerisource 12 Bergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (“Rule 15(a) is very liberal 13 and leave to amend ‘shall be freely given when justice so requires.’” (quoting Fed. R. Civ. P. 14 15(a))); see also L.R. 230(c). 15 After objections were filed, on February 8, 2023, Defendant Olam refiled its motion to 16 dismiss as applied to the first amended complaint. (ECF No. 40.) On February 9, 2023, the Court 17 referred the new motion to dismiss to the assigned Magistrate Judge for the preparation of 18 findings and recommendations and/or other appropriate action. (ECF No. 41.) Considering this, 19 and the above discussion, the Court shall adopt the recommendation to withdraw the motions for 20 failure to appear at the hearing; deem the first amended complaint the operative complaint; and 21 deem Defendant’s refiled motion to dismiss timely as applied to the first amended complaint. 22 Accordingly: 23 1. The findings and recommendations filed January 11, 2023, (ECF No. 33), are 24 ADOPTED in full; 25 2. Defendant Olam’s motion to dismiss filed October 18, 2022, (ECF No. 14), and 26 motion for joinder or more definite statement filed December 6, 2022, (ECF No. 22), 27 are WITHDRAWN; 28 /// 1 3. The first amended complaint filed December 27, 2022, (ECF No. 27), is DEEMED the 2 operative complaint in this action; and 3 4. Defendant Olam’s motion to dismiss the first amended complaint filed February 8, 4 2023, (ECF No. 40), is DEEMED timely as applied to the first amended complaint. 5 5. With respect to the February 8, 2023, motion to dismiss, (ECF No. 40), findings and 6 recommendations and/or other appropriate action will issue from the assigned 7 Magistrate Judge, pursuant to the Court’s February 9, 2023, referral of the matter. 8 9 19 | IT IS SO ORDERED. 11 Dated: _ June 7, 2023 UNITED f£TATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28