Surabhi v. Miller

          ORDER

          WILLIAM Q. HAYES, United States District Judge.

         The 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.

         On 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).

         On 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).

         On 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).^[1] 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 attorney's fees.

         On 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).

         On 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.

         On 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.

         The 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.

         IT IS 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, 2016.

         IT IS FURTHER ORDERED that Defendants' ex-parte motion to extend time for Defendants' opposition (ECF No. 38) is granted.

         IT 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.

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