United States District Court, S.D. California
WILLIAM Q. HAYES, United States District Judge.
matters before the Court are (1) the motion to dismiss and
motion for more definite statement and/or to strike (ECF No.
29) filed by Plaintiff Anirudha Surabhi; (2) the motion to
dismiss and/or strike Defendant's amended counterclaims
(ECF No. 31) filed by Plaintiff; and (3) the ex-parte motion
to extend time for Defendants' opposition (ECF No. 38)
filed by Defendants.
August 17, 2015, Plaintiff initiated this action by filing a
Complaint. (ECF No. 1). On September 4, 2015, Plaintiff filed
a First Amended Complaint, alleging claims of fraud, breach
of contract, breach of the covenant of good faith and fair
dealing, promissory estoppel, violation of California
Business and Professions Code Section 17200, et
seq., unjust enrichment, negligence, constructive trust,
and accounting. (ECF No. 3).
February 1, 2016, Defendants filed an answer to the First
Amended Complaint and counterclaims. (ECF No. 24). On
February 3, 2016, Defendants filed an amended answer to the
First Amended Complaint and amended counterclaims, alleging
nineteen affirmative defenses and counterclaims for fraud,
deceit, fraudulent and intentional misrepresentation,
promissory fraud, and fraudulent inducement. (ECF No. 25).
February 29, 2016, Plaintiff filed the memorandum of points
and authorities for a motion for a more definite statement
and/or to dismiss and strike Defendant's counterclaims.
(ECF No. 29). On March 1, 2016, Plaintiff filed a motion to
dismiss for failure to state a claim and dismiss and/or
strike, attaching a notice of motion and motion and a
memorandum of points and authorities identical to the
memorandum of points and authorities filed in ECF No. 29.
(ECF No. 31). Plaintiff contends that
Defendants/Counterclaimants failed to plead fraud with
particularity. Plaintiff contends that he is entitled to a
more definite statement before he is obligated to respond to
the counterclaim because the pleading fails to identify each
count for which relief is sought and fails to identify which
Defendants/Counterclaimants allege which claims against
Plaintiff7Counterdefendant. Plaintiff contends that the
prayer for attorney's fees should be stricken from the
counterclaims because Defendants/Counterclaimants fail to
allege a contract or statutory basis for recovery of
March 25, 2016, Defendants filed an opposition to the motion
to dismiss. (ECF No. 35). Defendants contend that Plaintiffs
February 29, 2016 filing of the points and authorities for
the motion to dismiss was improper because it lacked a
separate motion and notice of motion. Defendants contend that
Plaintiffs March 1, 2016 filing of the complete motion with a
notice of motion and memorandum of points and authorities was
not timely filed and should be denied on that basis.
Defendants request that "should the Court determine and
accept Plaintiffs MTD as being timely filed . . . Defendants
hereby move the Court for leave to amend this Opposition to
address Plaintiffs [points and authorities] with more
particularity ...." (ECF No. 35 at 5).
March 28, 2016, Plaintiff filed a reply. (ECF No. 36). In the
reply, Plaintiff asserts that Defendants' opposition was
filed five days late and requests the Court to strike the
opposition and grant Plaintiffs motion on that basis.
Plaintiff contends that even if the Court accepts
Defendants' opposition, the Court should grant the motion
on the merits.
March 29, 2016, Defendants filed a sur-reply and an ex-parte
motion to extend time for Defendants' opposition. (ECF
No. 38). Defendants assert that Defendants' counsel was
in the hospital at the time Defendants' opposition was
due and that Plaintiffs counsel was aware of Defendants'
counsel's medical issue. Defendants request the Court to
consider Defendants' opposition and issue an Order
stating that Defendants' opposition was late for good
cause and excusable neglect. ! The Court has considered all
of the briefing.
Court finds good cause for Defendants' failure to timely
file the opposition. Pursuant to Defendants' request for
an additional opportunity to fully address the merits of
Plaintiff s motion before the Court rules on Plaintiffs
motion, Defendants may file any additional response to the
motion on or before July 25, 2016. Defendants may file any
reply on or before August 1, 2016.
HEREBY ORDERED that Defendants may file a response to
Plaintiffs motion to dismiss and/or strike and motion for a
more definite statement (ECF No. 31) on or before July 25,
2016. Plaintiff shall file any reply on or before August 1,
FURTHER ORDERED that Defendants' ex-parte motion to
extend time for Defendants' opposition (ECF No. 38) is
FURTHER ORDERED that the motion to dismiss and motion for a
more definite statement and/or to strike (ECF No. 29) is
denied as moot.