Lin v. Suavei, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JADE LIN et al., Case No.: 20cv862-L(AHG) 12 Plaintiffs, ORDER DENYING MOTION TO 13 v. DISMISS [ECF No. 8] AND GRANTING MOTION FOR LEAVE 14 SUAVEI, INC. et al., TO AMEND [ECF No. 14] 15 Defendants. 16 17 Pending before the Court in this fraud action is a motion to dismiss filed by 18 Defendants Alfonso Infante and Allison Wong (“Defendants”), challenging the claims 19 alleging breach of fiduciary duty and breach of duty of loyalty under Federal Rule of 20 Civil Procedure 12(b)(6) as well as personal jurisdiction under Federal Rule of Civil 21 Procedure 12(b)(2). (ECF No. 8.) In response, Plaintiffs filed a motion for leave to file a 22 second amended complaint, seeking to address the issues raised in the motion to dismiss. 23 (ECF No. 14.) Plaintiffs also separately opposed the motion to dismiss, relying largely 24 on the proposed second amended complaint. (ECF No. 15.) In their reply in support of 25 motion to dismiss, Defendants also opposed Plaintiffs’ motion for leave to amend. (ECF 26 No. 16.) Plaintiffs separately filed a reply in support of their motion for leave to amend. 27 (ECF No. 17.) 28 / / / 1 Plaintiffs’ initial complaint was dismissed by the Court sua sponte with leave to 2 ||amend to properly allege subject matter jurisdiction. (ECF No. 3.) After filing their first 3 ||amended complaint, Plaintiffs retained their right to amend “once as a matter of course” 4 || pursuant to Rule 15(a)(1). See Ramirez v. County of San Bernardino, 806 F.3d 1002, 5 || 1006-07 (9th Cir. 2015). Plaintiffs timely filed their motion for leave to file a second 6 |}amended complaint within 21 days after service of Defendants’ motion to dismiss, as 7 || provided by Rule 15(a)(1)(B). Accordingly, their motion for leave to amend is granted. 8 Defendants’ motion to dismiss is denied without prejudice as moot. See Ramirez, 806 9 at 1008. Alternatively, Defendants’ motion to dismiss is denied without prejudice to 10 || allow the parties to fully brief the issues raised for the first time in Defendants’ reply 11 || brief. 12 Accordingly, it is ordered as follows: 13 1. Defendants’ motion to dismiss (ECF No. 8) is denied without prejudice. 14 2. Plaintiffs’ motion for leave to amend (ECF No. 14) is granted. 15 3. No later than October 13, 2020, Plaintiffs shall file and serve their second 16 |}amended complaint, attached as Exhibit A to the Declaration of Cody R. LeJeune. (ECF 17 || No. 14-3.) 18 4. Defendants shall file their response to the second amended complaint, if any, 19 ||no later than the date calculated according to Rule 12(a)(4)(A). 20 IT IS SO ORDERED. 21 22 Dated: October 7, 2020 1 fee fp H . James Lorenz, United States District Judge 25 26 27 28