Krause-Pettai et al v. Unilever United States, Inc., et al, No. 3:2020cv01672 - Document 51 (S.D. Cal. 2022)
Court Description: ORDER Granting Plaintiff's Ex Parte Motion For Leave To File A Third Amended Complaint [ECF No. 48 ]. Signed by Judge Linda Lopez on 6/28/2022. (ddf)
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Krause-Pettai et al v. Unilever United States, Inc., et al Doc. 51 Case 3:20-cv-01672-LL-BLM Document 51 Filed 06/28/22 PageID.516 Page 1 of 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 NICOLE KRAUSE-PETTAI, CHRISTY STEVENS, individually and on behalf of all others similarly situated, 13 14 15 16 Case No.: 20cv1672-LL-BLM ORDER GRANTING PLAINTIFFS’ EX PARTE MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT Plaintiffs, v. UNILEVER UNITED STATES, INC., a corporation; and DOES 1-10, inclusive, [ECF No. 48] Defendants. 17 18 19 20 21 Currently before the Court is Plaintiffs’ Ex Parte Motion for Leave to File a Third 22 Amended Complaint (“Motion”). ECF No. 48. For the reasons set forth below, the Motion 23 is GRANTED. 24 I. BACKGROUND 25 Plaintiffs, a class of California consumers who purchased Defendant’s products, 26 filed a putative class action against Defendant on August 26, 2020. ECF No. 1. On 27 December 2, 2020, Plaintiffs filed a First Amended Complaint (“FAC”). ECF No. 11. 28 Defendant moved to dismiss the FAC, and the Court granted in part and denied in part 1 20cv1672-LL-BLM Dockets.Justia.com Case 3:20-cv-01672-LL-BLM Document 51 Filed 06/28/22 PageID.517 Page 2 of 7 1 Defendant’s motion, with leave to amend. ECF Nos. 14, 18. Specifically, the Court 2 dismissed Plaintiffs’ requests for injunctive relief and Plaintiffs’ claims based on products 3 they did not purchase for lack of standing. Id. The Court also granted Defendant’s motion 4 to dismiss as to Plaintiffs’ claims for unjust enrichment, breach of implied warranty, and 5 as to Plaintiffs’ claims under California’s Consumers Legal Remedies Act (“CLRA”) and 6 False Advertising Law (“FAL”), as well as to Plaintiffs’ claims for negligent 7 misrepresentation and fraud on the ground that they were untimely. Id. On May 6, 2021, 8 Plaintiffs filed a Second Amended Complaint (“SAC”) realleging their claims and curing 9 any prior pleading deficiencies. ECF No. 20. 10 On June 3, 2021, the Court entered a scheduling order per Federal Rule of Civil 11 Procedure 16. ECF No. 25. The scheduling order gave the parties until August 2, 2021 to 12 file motions to amend pleadings or join other parties. This deadline was not adjusted 13 further. The scheduling order also set a deadline for all fact discovery and class 14 certification. Id. Per multiple joint stipulations by the parties, however, the discovery cutoff 15 deadline was extended to June 24, 2022, and the class certification deadline was extended 16 to July 29, 2022. ECF Nos. 39, 46. 17 On May 26, 2022, the parties filed a Joint Motion of Voluntary Dismissal of Class 18 Representatives Scott Grimm and Lanier. ECF No. 47. The next day, on May 27, 2022, 19 Plaintiffs filed the instant Motion, including the proposed and red-lined Third Amended 20 Complaint (“TAC”), seeking permission to modify the deadline for amended pleadings in 21 the Scheduling Order and seeking leave to file their TAC to add additional putative class 22 representatives Kevin Bolden and Errol Carreon in substitution of class representatives 23 Grimm and Lanier. ECF Nos. 48, 48-2, 48-3. Plaintiffs’ Motion further seeks to correct 24 minor factual discrepancies and remove Axe consumers from the purported class. Id. On 25 June 1, 2022, Defendant filed an opposition (“Opposition” or “Oppo.”) contending that 26 Plaintiffs’ Motion should be denied because it was filed well after the August 2, 2021 27 deadline to amend the pleadings per the Court’s scheduling order, and was filed too closely 28 to the discovery cut-off deadline of June 24, 2022. See ECF No. 49; Oppo. at 2. Defendant 2 20cv1672-LL-BLM Case 3:20-cv-01672-LL-BLM Document 51 Filed 06/28/22 PageID.518 Page 3 of 7 1 further opposes Plaintiffs’ Motion on the grounds that the Motion is untimely and will 2 prejudice Defendant and cause further undue delay. Oppo. at 2. 3 II. LEGAL STANDARD 4 If a scheduling order's deadline for amendments has passed, a party seeking leave to 5 amend must first satisfy the “good cause” standard of Federal Rule of Civil Procedure 6 16(b)(4), which states that “[a] schedule may be modified only for good cause and with the 7 judge's consent.” Fed. R. Civ. P. 16(b)(4). “Good cause” is a non-rigorous standard that 8 has been construed broadly. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th 9 Cir. 2010). Rule 16(b) “primarily considers the diligence of the party seeking the 10 amendment.” In re Western States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 11 737 (9th Cir. 2013). “[T]he focus of the Rule 16(b) inquiry is upon the moving party's 12 reasons for seeking modification . . . if that party was not diligent, the inquiry should end.” 13 Id. (internal quotation marks and citation omitted). 14 A party must next meet the standard for leave to amend. When the time has passed 15 for amendment as a matter of course, a party may amend its pleading with the opposing 16 party’s written consent or with the court’s permission. Fed. R. Civ. P. 15(a). “The court 17 should freely give leave when justice so requires.” Id. The Ninth Circuit has stated that 18 “this policy is to be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, 19 Inc., 244 F.3d 708, 712 (9th Cir. 2001) (citation omitted). “Five factors are taken into 20 account to assess the propriety of a motion for leave to amend: bad faith, undue delay, 21 prejudice to the opposing party, futility of amendment, and whether the plaintiff has 22 previously 23 356 F.3d 1067, 1077 (9th Cir. 2004). However, of these considerations, “it is the 24 consideration of prejudice to the [non-moving] party that carries the greatest weight.” 25 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 26 /// 27 /// 28 /// amended the complaint.” Johnson v. Buckley, 3 20cv1672-LL-BLM Case 3:20-cv-01672-LL-BLM Document 51 Filed 06/28/22 PageID.519 Page 4 of 7 1 III. DISCUSSION 2 A. 3 Plaintiffs’ Motion was filed after the scheduling order’s August 2, 2021 deadline for 4 amendments and joining parties had passed. Accordingly, Plaintiffs must first meet the 5 good cause standard of Rule 16(b) focusing on the diligence of the party seeking to modify 6 the scheduling order. See In re Western States, 715 F.3d at 737. Rule 16(b) 7 Here, Plaintiffs seek leave to amend to add two new class members because 8 “[n]either Mr. Grimm nor Mr. Lanier are able to participate in the litigation and fulfill their 9 duties to the Class.” Mot. at 1. Plaintiffs’ counsel provides the timing of their discussions 10 with Lanier and Defendant. Plaintiffs’ counsel “tried and failed to reach Lanier, who could 11 not be contacted at any previously available telephone numbers or email addresses.” Id. at 12 2. Plaintiffs, however, were unaware of this until after the first sets of discovery, which 13 required responses from Grimm and Lanier, were propounded on October 15, 2021. Oppo. 14 at 3. This was after the scheduling order’s August 2, 2021 deadline to file motions for 15 leave to amend the pleadings and join other parties had already passed. Lanier informed 16 Plaintiffs’ counsel he was no longer able to participate as a class representative on March 17 21, 2022. ECF No. 48-1 at 2. On that same day, Plaintiffs’ counsel informed opposing 18 counsel of this in an email correspondence. Id. Further, Plaintiffs’ counsel notified 19 Defendant’s counsel of the proposed motion for leave to file the amended complaint and 20 asked Defendant’s counsel to stipulate to the amendment. Id. Defendant’s counsel did not 21 agree to the stipulation, and thus Plaintiff filed the instant Motion. 22 Defendant argues that Plaintiffs waited nearly three months from the time when 23 Plaintiffs’ counsel concluded that a substitution might be necessary in this action to seek 24 leave to amend. While this delay is relevant, the time between learning of Lanier’s need to 25 withdraw and the filing of this Motion seems reasonable considering the time required to 26 identify, investigate, and interview absent class members to find a suitable candidate. The 27 order of events indicates Plaintiffs’ counsel was diligent in responding to events outside its 28 control, and Plaintiffs’ counsel was sufficiently diligent in securing potential replacement 4 20cv1672-LL-BLM Case 3:20-cv-01672-LL-BLM Document 51 Filed 06/28/22 PageID.520 Page 5 of 7 1 class representatives and seeking leave to amend. The Court finds Plaintiffs’ timing 2 demonstrates diligence and Plaintiffs’ stated reasons for seeking leave to amend 3 demonstrate good cause. Accordingly, the Court finds that Plaintiffs have been diligent in 4 seeking leave to amend and good cause exists under the standard of Rule 16(b). 5 6 B. Rule 15(a) 1. Undue Delay and Prejudice 7 When “good cause” has been established under Rule 16(b), courts will then examine 8 whether amendment is proper under the standards outlined in Rule 15(a). Defendant argues 9 that the Court should deny leave to amend because the proposed amendment would 10 prejudice Defendant and cause further undue delay. Defendant does not argue that 11 Plaintiffs are acting in bad faith or the amendment to substitute new plaintiffs is futile. 12 Here, Defendant argues that amendment to substitute two new plaintiffs will cause 13 further undue delay and prejudice because it would require an extension of the current 14 scheduling order and class certification deadlines “at this late stage.” Oppo. at 8–9. 15 Although the addition of Kevin Bolden and Errol Carreon will require the parties to engage 16 in further discovery that would extend this litigation, the Court does not find that this delays 17 the case such that it constitutes prejudice. Plaintiffs do not seek to add, change, or alter any 18 substantive allegations or legal theories from their SAC. Thus, the same arguments against 19 Plaintiffs’ causes of action in the SAC will be available to Defendant with Plaintiffs’ 20 proposed TAC. 21 As discussed above, Plaintiffs’ reasons for seeking amendment represent good cause 22 and Plaintiffs diligently found new class members and filed their motion for leave to amend 23 shortly after learning Lanier and Grimm confirmed they could not represent the class. See 24 SAES Getters S.p.A. v. Aeronex, Inc., 219 F.Supp.2d 1081, 1086 (S.D. Cal. 2002) (“To 25 show undue delay, the opposing party must at least show delay past the point of initiation 26 of discovery; even after that time, courts will permit amendment provided the moving party 27 has a reasonable explanation for the delay.”). Although this case was filed more than a year 28 ago and initial discovery has begun, it is still in its early stages. At this stage, the issue 5 20cv1672-LL-BLM Case 3:20-cv-01672-LL-BLM Document 51 Filed 06/28/22 PageID.521 Page 6 of 7 1 before the Court is limited to whether Plaintiffs should be allowed to amend their complaint 2 and does not extend to any class certification issues. Further, the Court finds any further 3 undue delay or prejudice to the Defendant is minimal because the parties may address any 4 need for additional discovery time by seeking amendment of the Court’s scheduling order, 5 with the January 9, 2023 trial date remaining unaffected. 6 Additionally, the Court is mindful that failing to allow substitution of the two new 7 parties at this point would merely require the filing of a new case and would waste the 8 resources of both of the parties and the judiciary. The policies favoring judicial economy 9 suggest that these parties and matters should be litigated in a single action, rather than in 10 multiple actions. As such, granting leave to amend would not “impose unwarranted 11 burdens on the court.” Davis v. Powell, 901 F.Supp.2d 1196, 1212 (S.D. Cal. 2012). 12 2. Previous Amendments 13 As to the last factor, “[t]he district court's discretion to deny leave to amend is 14 particularly broad where plaintiff has previously amended the complaint.” Allen v. City of 15 Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). Here, Plaintiffs have previously amended 16 their complaint twice. First, as a matter of right, and second, after the Court granted 17 Defendant’s motion to dismiss certain claims with leave to amend. ECF Nos. 11, 18, 20. 18 Plaintiffs’ prior amendments did not substitute or join other parties. Given the procedural 19 history of this action, the Court does not find this factor weighs heavily against amendment. 20 In sum, the Court finds that leave to amend to file a TAC is appropriate here under 21 the Rule 16(b) good cause standard and under Rule 15(a). 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 6 20cv1672-LL-BLM Case 3:20-cv-01672-LL-BLM Document 51 Filed 06/28/22 PageID.522 Page 7 of 7 1 IV. CONCLUSION 2 Accordingly, the Court GRANTS Plaintiffs’ Motion for Leave to File a Third 3 Amended Complaint and Plaintiffs shall file and serve the proposed Third Amended 4 Complaint on or before July 5, 2022. 5 IT IS SO ORDERED. 6 Dated: June 28, 2022 7 8 9 Honorable Linda Lopez United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 20cv1672-LL-BLM
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