Case 2:12-cv SVW-PLA Document 21 Filed 05/24/12 Page 1 of 10 Page ID #:204

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1 Case :-cv-0-svw-pla Document Filed 0// Page of 0 Page ID #: 0 Jonathan D. Selbin (State Bar No. 0) jselbin@lchb.com Kristen E. Law-Sagafi (State Bar No. ) ksagafi@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP Battery Street, th Floor San Francisco, CA Telephone: Facsimile: --00 [Additional attorneys listed on signature page] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA -- WESTERN DIVISION PHYLLIS GRODZITSKY and JEREMY BORDELON, on behalf of themselves and all others similarly situated, v. Plaintiffs, AMERICAN HONDA MOTOR CO., INC., Defendant. Case No. :-cv-0-svw-pla NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND PURSUANT TO FED. R. CIV. P. Hon. Judge Stephen V. Wilson Hon. Mag. Judge Paul L. Adams Date: July, Time: :0 p.m. Place: Courtroom 0.

2 Case :-cv-0-svw-pla Document Filed 0// Page of 0 Page ID #: 0 NOTICE OF MOTION AND MOTION Please take notice that on July, at :0 p.m. or as soon thereafter as the matter may be heard in Courtroom of the U.S. District Court, Central District of California, Western Division, located at N. Spring Street, Los Angeles, California 00, Plaintiffs will move the Court for leave to file their Master Complaint (First Amended Complaint) pursuant to Fed. R. Civ. P.. In support of this Motion, Plaintiffs rely on the Notice of Motion and Motion, the Memorandum of Points and Authorities set forth below, the entire record in this cause, and other evidence and argument as may be presented at the time of the hearing. This motion is made following the conference of counsel pursuant to L.R. -. A discussion regarding Plaintiffs filing an amended complaint was held prior to May,, and additional communications between counsel took place on May and,. Dated: May _, By: /S/ Jonathan D. Selbin Jonathan D. Selbin Jonathan D. Selbin (State Bar No. 0) jselbin@lchb.com Annika K. Martin (pro hac vice) akmartin@lchb.com 0 Hudson Street, th Floor New York, NY 00- Mark P. Chalos (pro hac vice) mchalos@lchb.com One Nashville Place 0 Fourth Avenue, Suite 0 Nashville, TN

3 Case :-cv-0-svw-pla Document Filed 0// Page of 0 Page ID #: 0 Kristen Law Sagafi (State Bar No. ) ksagafi@lchb.com Battery Street, th Floor San Francisco, CA Telephone: Facsimile: --00 Attorneys for Plaintiffs

4 Case :-cv-0-svw-pla Document Filed 0// Page of 0 Page ID #: 0 TABLE OF CONTENTS Page MEMORANDUM OF POINTS AND AUTHORITIES... I. BACKGROUND... II. ARGUMENT... A. Legal Standard... B. Leave to Amend Should be Granted i -

5 Case :-cv-0-svw-pla Document Filed 0// Page of 0 Page ID #: 0 Cases TABLE OF AUTHORITIES Page Eminence Capital, LLC v. Aspeon, Inc., F.d 0 (th Cir. Cal. 0)..., Foman v. Davis, U.S. (U.S. ) ii -

6 Case :-cv-0-svw-pla Document Filed 0// Page of 0 Page ID #: 0 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiffs hereby move the Court for leave to file the Master Complaint (First Amended Complaint), attached hereto as Exhibit A. I. BACKGROUND Plaintiffs filed their original Complaint in this case on February, (doc. no..), seeking certification of a national class of purchasers and lessees of certain Honda vehicles with defective Window Regulators and, in the alternative, certification of state classes for several states. Defendant has not yet filed an Answer to the original Complaint. On April,, Defendant filed a motion to dismiss the Complaint (doc. no. ) and a motion to strike certain allegations in the Complaint (doc no. ). The current deadline for Plaintiffs to file a response to Defendant s motions is May,, and the motions are presently set for hearing July,. No discovery has taken place yet. On April 0,, a separate plaintiff, Mark David Olson, represented by separate lawyers, filed a class action Complaint, styled Mark David Olson v. American Honda Motor Co., Inc., Case No. cv--0 SVW (PLAx). The Olson Complaint also seeks certification of a nationwide class of owners and lessees of certain Honda vehicles and, in the alternative, certification of state classes. The proposed class in Olson covers the same vehicle models and model years as the proposed class in the instant case and involves the same alleged Window Regulator defect. The sole defendant is the same in both cases. Olson was deemed a Related Case to the instant action and transferred to this Court pursuant to General Order 0-0 on April, (Olson, doc. no. ). In view of the filing and subsequent transfer to this Court Olson, Plaintiffs from both the Olson case and the instant case have agreed jointly to file a Master Complaint encompassing claims from both cases. The Master Complaint, attached hereto as Exhibit A, also includes claims by two additional Plaintiffs, as well as additional and modified allegations intended to address arguments raised in

7 Case :-cv-0-svw-pla Document Filed 0// Page of 0 Page ID #:0 0 Defendant s motion to dismiss and motion to strike. The filing of a Master Complaint will streamline this litigation and will avoid having two overlapping class actions related to the same products, proceeding concurrently, but on different schedules. Moreover, the Master Complaint addresses and makes moots a number of the arguments raised by Defendant in its motions to dismiss and to strike, which will further conserve judicial and party resources. Defendant has not consented to the filing of this Master Complaint pursuant to Rule (a)(). II. ARGUMENT A. Legal Standard Rule (s) provides that leave to amend shall be freely given when justice so requires. The United States Supreme Court stated this mandate is to be heeded. Foman v. Davis, U.S., (U.S. ). The Court further observed: If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be "freely given." Id. at. The Ninth Circuit stated Rule is to be applied with extreme liberality. Eminence Capital, LLC v. Aspeon, Inc., F.d 0, 0 (th Cir. Cal. 0)(citations omitted). The Ninth Circuit has also made clear that not all of the Foman factors should be weighted equally. Instead, the consideration of prejudice to the opposing party carries the greatest weight. Id. at 0 (citations omitted)

8 Case :-cv-0-svw-pla Document Filed 0// Page of 0 Page ID #: 0 Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule (a) in favor of granting leave to amend. Id. at 0. B. Leave to Amend Should be Granted In this case, Defendant has not yet filed an answer to the Complaint. No discovery has been taken. No trial date has been set. There has not yet been a scheduling order entered and the Rule conference has not yet occurred. The complaint has not been previously amended. Granting leave to file the Master Complaint will not cause any delay. In fact, the filing of the Master Complaint will advance and streamline the litigation. It would allow the Court and the parties from two separate cases to litigate their claims in a single action, using one operative complaint. The filing of the Master Complaint would avoid Defendant filing separate motions in each case challenging the sufficiency of the complaints and would allow the Court to make one set of rulings on Defendant s motions. Litigating the claims in one case rather than two, through a Master Complaint, will also allow the Court to enter a single scheduling order, adjudicate a single set of any discovery disputes and other motions, including class certification, and conduct a single trial. Moreover, filing the Master Complaint will not cause any prejudice to Defendant. This litigation is in its early stages. No discovery has been taken. Defendant has not yet filed an Answer to the complaint in either Olson or this case. Defendant would not be unfairly prejudiced in any way by the filing of the Master Complaint. Additionally, the filing of the Master Complaint will moot many, if not all, of the arguments raised in Defendant s motion to dismiss and motion to strike. To the extent that Defendant believes that it continues to have meritorious challenges to the allegations in the Master Complaint, it can file streamlined motions that can be heard near the time their prior motions were set for hearing

9 Case :-cv-0-svw-pla Document Filed 0// Page of 0 Page ID #: 0 Accordingly, the parties respectfully request that the Court grant Plaintiffs leave to file the attached Master Complaint (First Amended Complaint) and enter the Proposed Order, filed contemporaneously herewith. Dated: May, By: /S/ Jonathan D. Selbin Jonathan D. Selbin Jonathan D. Selbin (State Bar No. 0) jselbin@lchb.com Annika K. Martin (pro hac vice) akmartin@lchb.com 0 Hudson Street, th Floor New York, NY 00- Mark P. Chalos (pro hac vice) mchalos@lchb.com One Nashville Place 0 Fourth Avenue, Suite 0 Nashville, TN - Kristen Law Sagafi (State Bar No. ) ksagafi@lchb.com Battery Street, th Floor San Francisco, CA Telephone: Facsimile: --00 Attorneys for Plaintiffs

10 Case :-cv-0-svw-pla Document Filed 0// Page 0 of 0 Page ID #: 0 CERTIFICATE OF SERVICE I hereby certify that on May,, I electronically transmitted the attached document(s) to the Clerk s office using the CM/ECF System for filing and to serve as notice of electronic filing to all parties registered with CM/ECF, as indicated below: Paul G. Cereghini paul.cereghini@bowmanandbrooke.com Marion V. Mauch marion.mauch@bowmanandbrooke.com BOWMAN AND BROOKE LLP West 0th Street, Suite 00 Gardena, CA 0- (0) -0 Attorneys for Defendant AMERICAN HONDA MOTOR CO., INC. Ryan L. Nilsen ryan.nilsen@bowmanandbrooke.com 0 South Fifth Street, Suite 000 Minneapolis, MN 0 () - Attorney for Defendant AMERICAN HONDA MOTOR CO., INC. Dated: May, /S/ Jonathan D. Selbin JONATHAN D. SELBIN 0.