Opinion
No. C 03-05531 JSW.
November 1, 2004
ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND DIRECTING PLAINTIFFS TO FILE A SECOND AMENDED COMPLAINT
Having reviewed defendant's Request for Hearing and supporting Declaration of Janine R. Hudson, it is clear that defendant failed to comply with the Court's October 18, 2004 Order directing the parties to meet and confer. Civil Local Rule 1-5(n) defines "meet and confer" as "to communicate directly and discuss in good faith the issue(s) required under the particular Rule or Order . . . The mere sending of a written, electronic, or voice-mail communication, however, does not satisfy a requirement to `meet and confer' or `to confer.' Rather, this requirement can be satisfied only through direct dialogue and discussion." Sending a slightly revised copy of the proposed order attached to defendant's motion to dismiss filed on August 2, 2004 and asking plaintiff to provide "written confirmation of [p]laintiffs' acceptance" of the terms does not satisfy this requirement. See Declaration of Janine Hudson in Support of Defendant's Request for Hearing, Ex. B. Defendant is on notice that it will be sanctioned for any future failures to comply with Court orders.
Notwithstanding defendant's failure to meet and confer, and considering plaintiffs' arguments in its Statement of Non-Opposition filed on October 15, 2004, and meet and confer letter dated October 21, 2004, the Court finds this matter suitable for disposition without oral argument and VACATES the hearing scheduled for November 5, 2004. To the extent that plaintiffs state in their meet and confer letter that they "do not intend to prosecute this action as a class action," defendant's motion to dismiss class allegations is DENIED as moot. Defendant's motion to dismiss the Seventh Claim as to plaintiff Woods is DENIED as moot in light of counsel's agreement to dismiss this claim if Woods failed to exhaust his administrative remedies. Defendant's motion to dismiss the Seventh Claim as to plaintiff Berhane is DENIED due to counsel's representation that Berhane exhausted his administrative remedies. To the extent defendant argues that the First Amended Complaint is insufficiently plead, defendant's motion to dismiss is DENIED without prejudice. Even if the Court agreed with defendant, plaintiffs would be granted leave to amend their complaint to cure these alleged deficiencies.
Plaintiffs shall file and serve a Second Amended Complaint consistent with plaintiffs' counsel's position as set forth in his October 21, 2004 meet and confer letter no later than November 22, 2004. If after reviewing the Second Amended Complaint defendant still challenges the sufficiency of the pleadings, it may file a new motion to dismiss. The case management conference originally scheduled for 9:00 a.m. is continued to 1:30 p.m. on November 5, 2004.
IT IS SO ORDERED.