Levi Strauss & Co. v. Connolly
- Virginia Demarchi
- 5:22-cv-04106
- U.S. District Court · Northern District of California
- 2
In Levi Strauss & Co. v. Connolly, Judge Demarchi granted Levi Strauss’s motion to strike Connolly’s unauthorized filing but instructed him how to seek permission to amend.
Levi Strauss & Co.’s motion to strike was granted, removing David Connolly’s March 23, 2023 “Answer and Counterclaim.” Connolly was told that he could seek permission to amend his earlier answer, subject to the applicable rules and deadline.
What happened
In Levi Strauss & Co. v. Connolly, Levi Strauss objected to David Connolly’s March 23, 2023 filing, which was labeled an “Answer and Counterclaim.” Levi Strauss argued that Connolly was not authorized to file it because he had already answered the complaint.
Connolly said the filing was meant to amend his earlier answer to add a counterclaim. The deadline for amending an answer without permission had passed, and Levi Strauss did not agree to the amendment. The opinion also noted that the possible counterclaim for perjury was unclear and that civil claims based on perjury generally cannot be brought under a criminal statute.
Judge Virginia K. Demarchi granted Levi Strauss’s motion to strike the March 23 filing. The court instructed Connolly that he could seek permission to amend his answer by filing a motion under Rule 15 and the court’s local rules, with a June 2, 2023 deadline for seeking leave to amend.
The detailed version
- Levi Strauss & Co. v. Connolly · No. 5:22-cv-04106
- Virginia Demarchi
- Apr. 25, 2023
Background
Levi Strauss & Co. filed an administrative submission objecting to David Connolly’s March 23, 2023 “Answer and Counterclaim.” Levi Strauss argued that Connolly’s filing was unauthorized because Connolly had filed multiple answers in the case. The court treated Levi Strauss’s submission as a motion to strike under Federal Rule of Civil Procedure 12(f), which allows a court to remove material from a pleading, and gave Connolly an opportunity to respond.
Connolly explained that he intended the March 23 filing to amend his earlier answer and add a counterclaim. Rule 15(a)(1)(A) allows an answer to be amended once without court permission, but only within 21 days after the original answer is served. Connolly first answered the complaint on November 22, 2022, so that period had expired. Levi Strauss did not consent to the amendment.
Ruling
Because Connolly had not obtained Levi Strauss’s written consent or asked the court for permission before filing the amended answer and counterclaim, the court granted Levi Strauss’s motion to strike the March 23 filing.
The court instructed Connolly that, if he wished to amend his earlier answer to add a counterclaim, he had to file a motion under Rule 15 and comply with Civil Local Rule 7. The court stated that leave to amend is ordinarily granted but that courts commonly consider undue delay, bad faith or a dilatory motive, repeated failure to fix deficiencies, undue prejudice, and whether the proposed amendment would be futile. The deadline under the case management order for seeking leave to amend pleadings was June 2, 2023.
The opinion said that the nature of Connolly’s proposed counterclaim was not entirely clear. To the extent he intended to assert a counterclaim for perjury, the court noted that there is no private right to sue for perjury and that criminal statutes generally do not provide a basis for civil liability. The order did not decide whether Connolly would receive permission to amend.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.