Breaking Code Silence v. Papciak

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 BREAKING CODE SILENCE, Case No. 21-cv-00918-BAS-DEB 8 Plaintiff, ORDER: 9 v. (1) DENYING DEFENDANT 10 JENNIFER WALKER’S REQUEST CHELSEA PAPCIAK, et al., TO STRIKE THE SECOND 11 AMENDED COMPLAINT Defendants. (ECF No. 24); 12 (2) DENYING PLAINTIFF’S 13 REQUESTS TO ENTER DEFAULT (ECF Nos. 27–31); 14 (3) DENYING AS MOOT DEFENDANT 15 MARTHA THOMPSON’S MOTION TO DISMISS (ECF No. 15) 16 17 Plaintiff filed a Second Amended Complaint (“SAC”) on June 23, 2021. (ECF No. 18 19.) On July 9, 2021, Defendant Jennifer Walker objected to the filing of the SAC because 19 she neither consented to the filing nor did Plaintiff seek leave of court. (Obj., ECF No. 20 24.) She states she provided only “conditional consent” to be “provided upon Plaintiff’s 21 performance of subsequent conditions, to which Plaintiff did not agree.” (Id.) 22 Plaintiff has responded to Defendant Walker’s objection and provided email 23 communications showing that counsel for Defendant Walker, Michael Jacobs, consented 24 without condition to the filing of the SAC. (Ex. A to Pl.’s Resp. to Obj. at 1 (“I just spoke 25 extensively with Mr. Stilwell and have no objection to your filing a Second Amended 26 Complaint.”), ECF No. 26-1.) Plaintiff’s counsel had previously stated to Mr. Jacobs that 27 she would seek leave of court to file the SAC if he did not consent to its filing. (Id. at 2.) 28 Further, Plaintiff has demonstrated that written consent was received by counsel 1 representing the other three individual defendants in this action. (Ex. B to Pl.’s Resp. to 2 Obj. at 1, ECF No. 26-2.) 3 Federal Rule of Civil Procedure 15(a)(1) permits amendment as a matter of course 4 only once. Any further amendment may be made only “with the opposing party’s written 5 consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Plaintiff had obtained all opposing 6 parties’ written consent prior to filing the SAC. Perplexingly, Defendant Walker claims 7 that Civil Local Rule 15.1(b) requires “that further amendments must be made by noticed 8 motion, ev[en] if it is done jointly.” (Obj. at 1.) The rule does not require this. It states 9 only that a motion to amend must attach the proposed amended complaint and a redlined 10 version showing the changes made. CivLR 15.1(b). 11 Defendant Walker has also filed an objection to Plaintiff’s Request for Entry of 12 Default because her objection to the filing of the SAC is pending and she has already 13 appeared in the case. (ECF No. 32.) Because the Court now finds the objection to the SAC 14 meritless, Defendant Walker’s argument is moot. However, because Defendant Walker 15 previously filed an Answer to the First Amended Complaint and has been active (although 16 dilatory) in her defense, the Court finds that the record would counsel against entry of 17 default judgment. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (enumerating 18 factors); cf. Diamond v. Cty. of Riverside, No. ED CV 14-01922-VBF, 2015 WL 11215850, 19 at *6 (C.D. Cal. Nov. 5, 2015) (finding that where entry of default “would be futile and 20 would waste the resources of both the court and the parties[,] . . . it is more just, and more 21 efficient, not to enter default . . . in the first instance.”); Lopez v. Trendacosta, No. LA CV 22 14-05406 JAK, 2014 WL 6883945, at *12 (C.D. Cal. Dec. 4, 2014) (denying request to 23 enter default where it “could not form the basis for a subsequent entry of default judgment,” 24 even though entry of default was mandatory under Rule 55(a)). Further, the Court is 25 mindful that in circumstances where multiple defendants are alleged to be jointly liable, 26 assert closely related defenses, or are otherwise similarly situated, courts should not enter 27 default as to one defendant where it is likely to be inconsistent with a judgment on the 28 1 merits as to other defendants. See In re First T.D. & Investment, Inc., 253 F.3d 520, 532 2 || (9th Cir. 2001). 3 Accordingly, the Court finds as follows: 4 (1) Plaintiff has sufficiently shown, under Rule 15(a)(2), that all Defendants 5 || consented in writing to the submission of the SAC. Thus, Defendant Walker’s objection 6 || to the filing of the SAC (ECF No. 24), which the Court construes as a motion to strike, is 7 || DENIED. 8 (2) The Clerk is instructed to DENY Plaintiff's requests to enter default against 9 Defendants. Each Defendant shall have until August 2, 2021 to file a response to the 10 || SAC. If Defendants fail to timely comply, Plaintiff may renew its requests for entry of 11 || default. 12 (3) Because the SAC is the operative pleading, Defendant Martha Thompson’s 13 || Motion to Dismiss the First Amended Complaint (ECF No. 15) is DENIED AS MOOT. 14 IT IS SO ORDERED. 15 / . □ 16 || DATED: July 19, 2021 sill A Hishaa 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28