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Sean Barnes, Individually, and On Behalf of All Others Similarly Situated v. Equinox Group
February 17, 2012
SEAN BARNES, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
EQUINOX GROUP, AND DOES 1 THROUGH 100, INCLUSIVE,
The opinion of the court was delivered by: Laurel Beeler United States Magistrate Judge
ORDER RE UNOPPOSED EX PARTE APPLICATION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT [ECF No. 72]
On February 15, 2012, Plaintiff Sean Barnes filed an ex parte application for leave to file a second amended complaint. ECF No. 72 at 1. Plaintiff contends that good cause exists to grant the 19 ex parte application because the proposed amendments will affect the Rule 30(b)(6) witness deposition currently scheduled for February 28, 2012 and that Plaintiff will be prejudiced if he 21 cannot examine the witness on topics related to the proposed meal and rest period claims. Id. at 2.
Defendant Equinox Group did not agree to stipulate to the filing of an amended complaint but stated 23 that it would not object to or oppose the application. DeSario Decl., ECF no. 72-1 at 2, ¶ 5. 24 Civil Local Rule 7-10 requires any ex parte motion to include a citation to the statute, rule or 25 order which permits the use of an ex parte motion to obtain the relief sought. N.D. Cal. Civ. L.R. 7-26 10. Plaintiff did not comply with this requirement. 27 But the court will treat its motion as both a motion for leave to file a second amended complaint 28 and a motion to shorten time. Given Defendant's apparent position that it does not intend to object 1 to or oppose the application, the court sets an abbreviated briefing schedule as described below. 2 Defendant shall file either an opposition brief or statement of non-opposition no later than Tuesday, 3 February 21, 2012. Plaintiff's reply (if necessary) is due on Wednesday, February 22, 2012. 4 Electronic copies of these papers shall be emailed to firstname.lastname@example.org by 5:00 p.m. on the due 5 date. If a hearing is warranted, the court will address the issue at the case management conference 6 currently scheduled for 10:30 a.m. on Thursday, February 23, 2012. 7 The court makes two additional observations. First, pursuant to Federal Rule of Civil Procedure 8 30, a deponent may be instructed not to answer "only when necessary to preserve a privilege, to 9 enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)." Fed. R. Civ. 10 P. 30(c)(2). Accordingly, the court is not convinced that the application for leave to file a second 11 amended complaint is as time-sensitive as Plaintiff suggests. Second, Plaintiff's substantive 12 arguments discuss the standard for amendments provided by Federal Rule of Civil Procedure 15(a).
But motions to amend the pleadings filed after the date set in the court's scheduling order-in this 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an case, June 2, 2011- must satisfy the more stringent "good cause" showing required under Rule 16. 15 See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). "Unlike Rule amendment and the prejudice to the opposing party, Rule 16(b)'s 'good cause' standard primarily considers the diligence of the party seeking the amendment." Id. at 609.
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