Levi Strauss & Co. v. Connolly ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 LEVI STRAUSS & CO., Case No. 22-cv-04106-VKD 9 Plaintiff, ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANT’S 10 v. MARCH 23, 2023 “ANSWER AND COUNTERCLAIM” 11 DAVID CONNOLLY, Re: Dkt. No. 36 Defendant. 12 13 14 On April 12, 2023, plaintiff Levi Strauss & Co. (“LS&Co.”) filed an “Administrative 15 Submission” (Dkt. No. 36) objecting to defendant David Connolly’s March 23, 2023 “Answer and 16 Counterclaim” (Dkt. No. 34 and Dkt. No. 34-1). Noting that Mr. Connolly has filed multiple 17 answers since appearing in this action, LS&Co. contended that Mr. Connolly’s March 23 filing is 18 not authorized. The Court construed LS&Co.’s submission as a Rule 12(f) motion to strike Mr. 19 Connolly’s March 23 “Answer and Counterclaim,” and directed Mr. Connolly to file a response. 20 Dkt. No. 37. 21 In his response, Mr. Connolly indicates that his March 23 filing reflects his intention to 22 amend his prior answer(s) to add a counterclaim. Dkt. No. 39. While an answer to a complaint 23 may be amended once, as a matter of course, such amendments are only allowed within 21 days 24 after the original answer is served. Fed. R. Civ. P. 15(a)(1)(A). That 21-day deadline has long 25 since passed; Mr. Connolly first filed an answer to LS&Co.’s complaint on November 22, 2022. 26 See Dkt. No. 13. As LS&Co. does not stipulate to the filing of the March 23 “Answer and 27 Counterclaim,” Mr. Connolly may amend his answer to add a counterclaim, only with the Court’s 1 with the opposing party’s written consent or the court’s leave.”). Because Mr. Connolly did not 2 seek leave of court to file his March 23 “Answer and Counterclaim,” LS&Co.’s motion to strike 3 || that filing is granted. 4 To the extent Mr. Connolly wishes to amend his prior answer(s) to include a counterclaim, 5 he must file a motion pursuant to Rule 15 of the Federal Rules of Civil Procedure, and in 6 || compliance with Civil Local Rule 7, seeking leave of court for such an amendment. Under Rule 7 15, courts ordinarily must grant leave to amend, but commonly consider several factors in 8 determining whether leave to amend is appropriate, including: (1) undue delay in seeking the 9 amendment, (2) bad faith or dilatory motive on the part of the movant, (3) repeated failure to cure 10 || deficiencies by amendment, (4) undue prejudice to the opposing party, or (5) futility of 11 amendment. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) a 12 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).! If Mr. Connolly chooses to file a motion to < 13 || amend his answer, he should file the motion using the “Amend/Correct” e-filing event under the v 14 || “Motions and Related Filings” Civil Events category for “Motions — General” in the CM/ECF 15 system. Under the Court’s case management order (Dkt. No. 33), the deadline for seeking leave to 16 || amend pleadings is June 2, 2023. = 17 IT IS SO ORDERED. 18 || Dated: April 25, 2023 19 VIRGINIA K. DEMARCH United States Magistrate Judge 22 23 24 25 ' While the nature of the counterclaim Mr. Connolly seeks to add is not entirely clear, insofar as he 26 || indicates that he would like to assert a counterclaim for perjury (Dkt. No. 39 at 4), there is no private right of action for such a claim. See Cooney v. City of San Diego, No. 4:21-cv-01721- 07 YGR, 2022 WL 1991211, at *4 (N.D. Cal. June 6, 2022) (dismissing claims based on criminal theories, such as obstruction of justice and perjury, on the ground that “there is no private right of action.”); see also generally Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (stating that 28 we . ae criminal statutes “provide no basis for civil liability”).