Opinion
Case No.: 3:21-cv-00105-BEN-KSC
04-13-2021
XPANDORTHO, INC., a Delaware corporation; EXACTECH, INC., a Florida corporation, Plaintiff, v. ZIMMER BIOMET HOLDINGS, INC., a Delaware corporation; ZIMMER, INC., a Delaware corporation; ZIMMER U.S., INC., a Delaware corporation doing business as ZIMMER BIOMET SOUTHERN CALIFORNIA; ORTHOSOFT ULC, a Canadian corporation doing business as ZIMMER CAS, Defendant.
ORDER ON JOINT MOTION FOR EXTENSION OF TIME TO MOVE, ANSWER, OR OTHERWISE RESPOND TO PLAINTIFFS' COMPLAINT
[ECF No. 12]
I. INTRODUCTION
Plaintiffs XpandOrtho, Inc., a Delaware corporation ("XPandOrtho"), and Exactech, Inc., a Florida corporation ("Exactech") (collectively, "Plaintiffs") brings this action against Defendants Zimmer Biomet Holdings, Inc., a Delaware corporation ("ZBH"); Zimmer, Inc., a Delaware corporation; Zimmer US, Inc., a Delaware corporation doing business as Zimmer Biomet Southern California ("ZBSC"); and ORTHOsoft ULC, a Canadian corporation doing business as Zimmer CAS ("Orthosoft") (collectively, "Defendants") for alleged misuse of confidential information, unfair competition, breach of contract, and copyright infringement. Complaint, ECF No. 1 at 2 ("Compl.")
Before the Court is the Joint Motion for Extension of Time to Move, Answer, or Otherwise Respond to Plaintiffs' Complaint (the "Joint Motion"). ECF No. 12. After considering the papers submitted, supporting documentation, and applicable law, the Court GRANTS the Joint Motion. Defendants' responsive pleading is due by May 28, 2021.
II. BACKGROUND
On January 20, 2021, Plaintiffs filed suit against Defendants, alleging claims for (1) misappropriation of trade secrets under the Federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836 ("DTSA"); (2) aiding and abetting misappropriation of trade secrets in violation of the DTSA; (3) misappropriation under the California Uniform Trade Secrets Act, Cal. Civ. Code, § 3426, et seq. (the "CUTSA"); (4) aiding and abetting misappropriation of trade secrets in violation of the CUTSA; (5) breach of contract; (6) tortious interference with contractual relations; (7) breach of the implied covenant of good faith and fair dealing; (8) fraud; (9) conversion; (10) unjust enrichment; (11) intentional interference with prospective economic advantage; (12) negligent interference with prospective economic advantage; (13) breach of confidence; (14) copyright infringement; and (15) violation of California's Unfair Business Practices Law. See Compl.
On March 29, 2021, Plaintiff served Defendant ZBH, ECF No. 7, and Defendant Zimmer, Inc., ECF No. 8, making their responsive pleading due on Monday, April 19, 2021. See FED. R. CIV. P. 12(a)(1)(A)(i).
On either March 31, 2021 or April 12, 2021, Plaintiff served Defendant ZBSC, ECF Nos. 9, 15, making its responsive pleading due between Wednesday, April 21, 2021, and Monday, May 2, 2021.
Plaintiff filed two separate proofs of service for Defendant ZBSC, making it unclear on which day service of process was actually effected. --------
On April 1, 2021, Plaintiff served Defendant Orthosoft, ECF No. 10, making the responsive pleading due by Thursday, April 22, 2021.
On April 12, 2021, the parties filed the Joint Motion, seeking to make the responsive pleading for all Defendants due on the same day: May 28, 2021. ECF No. 12.
III. LEGAL STANDARD
A defendant must file a responsive pleading within either (1) twenty-one days of being served with the summons and complaint or (2) sixty days after the request for a waiver was sent. FED. R. CIV. P. 12(a)(1)(A)(i). "Extensions of time for answering, or moving to dismiss a complaint will only be secured by obtaining the approval of a judicial officer, who will base the decision on a showing of good case." S.D. Cal. Civ. R. 12.1. Thus, "[i]n the Southern District, court approval is required for any extension of time to answer or move to dismiss the complaint." Phillips, Virginia A., et al., Rutter Group Prac. Guide: Fed. Civ. Pro. Before Trial, § 8:913 (The Rutter Group April 2020).
IV. DISCUSSION
The parties jointly move to extend Defendants' time to respond to the Complaint to May 28, 2021, provided Defendants do not contest service of process, venue, or personal jurisdiction. ECF No. 12 at 2. Based on the dates of service for each defendant, this amounts to a thirty-nine (39) day extension for ZBH and Zimmer, Inc.; a twenty-five (25) to thirty-seven (37) day extension to ZBSC; and a thirty-six (36) day extension for Orthosoft. The parties allege that this time "will permit Defendants' outside counsel sufficient time to analyze Plaintiffs' allegations and prepare their response and also narrow issues before the Court." Id. They indicate that Defendants retained counsel on March 26, 2021, were not served until March 29, 2021, and require additional time to prepare a response to the complaint. Id. The Court finds good cause exists to grant the extension.
V. CONCLUSION
For the above reasons, the Court GRANTS the Joint Motion. All Defendants shall file a responsive pleading by Friday, May 28, 2021.
IT IS SO ORDERED. DATED: April 13, 2021
/s/_________
HON. ROGER T. BENITEZ
United States District Judge