United States District Court, N.D. California
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
DOCKET NO. 42
M. CHEN, UNITED STATES DISTRICT JUDGE
pending before the Court is Defendant Carriage Services,
Inc.’s (“CSI”) motion to dismiss pursuant
to Federal Rule of Civil Procedure 41(b) or, in the
alternative, for entry of judgment pursuant to Rule 54(b).
The Court has reviewed the parties’ briefs and
accompanying submissions and finds that this matter is
suitable for disposition without oral argument. The hearing
on the motion is therefore VACATED.
CSI’s motion is DENIED in its
entirety. The Court also orders Plaintiffs to file their
second amended complaint within two days of the date of this
events giving rise to CSI’s motion are as follows.
2019, CSI, along with other named defendants, moved to
dismiss Plaintiffs’ first amended complaint, which
alleged violations of wage-and-hour laws. See Docket
No. 15 (motion). The Court held a hearing on the motion on
July 16, 2019. At one point during the hearing, the Court
made a brief statement regarding a claim asserted by one
Plaintiff, noting “I’m going to require amendment
of Ms. Davis’s claim.” Docket No. 36 (Tr. at 8).
More discussion followed, related to all Plaintiffs, and then
the Court issued its ruling, granting in part and denying in
part the motion to dismiss. The following exchange took
Court: So technically I’m going to deny the motion to
dismiss with respect to the overtime claim for Ms. Barajas,
but I’m going to grant it with respect to the other
– the rest of the motion to dismiss, with leave to
amend. Thirty days –
Court: – enough?
Plaintiffs: Thank you.
No. 36 (Tr. at 10-11) (emphasis added). Subsequently, the
Court issued a minute order which confirmed that the motion
to dismiss Ms. Barajas’s overtime claim was denied
(with respect to CSI) but that the motion was otherwise
granted. The Court also identified allegations that would
need to be made in the second amended complaint. The Court
did not make any comment in the minute order as to when the
second amended complaint needed to be filed. See
Docket No. 34 (order).
days after the hearing, Plaintiffs did not file a second
amended complaint. They did, however, on August 16, 2019,
order a transcript for the motion-to-dismiss hearing which
was provided to them on the same day. See Docket No.
30 (transcript order).
August 27, CSI answered the first amended complaint. CSI also
filed the pending motion to dismiss pursuant to Rule 41(b).
Rule 41(b) provides: “If the plaintiff fails to
prosecute or to comply with these rules or a court
order, a defendant may move to dismiss the action or any
claim against it.” Fed.R.Civ.P. 41(b) (emphasis added).
According to CSI, Plaintiffs failed to file an amended
complaint within thirty days as ordered by the Court at the
hearing (i.e., by August 15) and therefore all
claims should be dismissed, except for Ms. Barajas’s
overtime claim (which was the only claim in the first amended
complaint that survived the motion to dismiss).
September 10, Plaintiffs submitted a proposed second amended
complaint, more specifically, in conjunction with their
opposition to CSI’s motion to dismiss. See
Villanueva Decl., Ex. D (proposed SAC).
Rule 41(b) motion is predicated on there being a “court
order” requiring amendment by August 15. If the Court
had, at the hearing on the earlier 12(b)(6) motion to
dismiss, clearly and unambiguously ordered Plaintiffs to file
an amended complaint by August 15, then it could fairly be
said that Plaintiffs failed to comply with a court order
– even if the order was only made orally and not
memorialized in the relevant minute order. See Yourish v.
Cal. Amplifier, 191 F.3d 983, 987 (9th Cir. 1999)
(noting that a default judgment as a sanction for
noncompliance with a court order, pursuant to Federal Rule of
Civil Procedure 37(b)(2), is permissible even where there is
no written order – so long as the oral order is clear;
“[j]ust as an oral order is an ‘order, ’
the noncompliance with which justifies Rule 37(b)(2)
sanctions, Judge Marshall's minute order was an
‘order, ’ the disobedience of which justified
dismissal under Rule 41(b)”). However, arguably, there
was no clear and unambiguous order by the Court at the
hearing, and thus Plaintiffs have invoked Applied
Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890
(9th Cir. 2019). There, the Ninth Circuit made clear that,
where a court simply gives leave to amend, but does not
“mandate the filing of an amended complaint”
– and does not otherwise “indicate that failure
to [file an ...