1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THANE CHARMAN, Case No.: 3:23-cv-352-WQH-AHG

12 Plaintiff, ORDER 13 v. 14 U.S.A. HOME INSPECTORS, a California limited liability 15 company, 16 Defendant. 17 18 HAYES, Judge: 19 The matters before the Court are: (1) the Order to Show Cause (ECF No. 32) issued 20 by the Court and staying the proceedings; (2) the Motion to Strike Amended Reply to 21 Motion for Default Judgment (ECF No. 29) filed by Plaintiff Thane Charman (“Plaintiff”); 22 (3) the Motion Allowing Plaintiff to File Second Amended Complaint (ECF No. 31) filed 23 by Plaintiff; and (4) Plaintiff’s Motion for Default Judgment Against Defendant (ECF No. 24 21) filed by Plaintiff. 25 I. BACKGROUND 26 On February 23, 2023, Plaintiff filed the Complaint (ECF No. 1) asserting claims 27 against Defendants U.S.A. Home Inspectors and Keith Klinger (“Klinger”). On May 21, 28 1 2023, Plaintiff filed the operative “[First] Amended Complaint” (the “FAC”). (ECF No. 2 9.) 3 On June 10, 2024, Plaintiff filed a “Motion for Default Judgment Against 4 Defendant[s]” (the “Motion for Default Judgment”). (ECF No. 21.) 5 On July 8, 2024, Klinger filed a “Reply to [the] Motion for Default Judgment.” (ECF 6 No. 23.) 7 On July 22, 2024, Plaintiff filed a “Reply to Reply to Motion for Default Judgment.” 8 (ECF No. 24.) 9 On August 12, 2024, Klinger, proceeding pro se, filed an “Amended Reply to 10 Motion for Default Judgment” (“Amended Reply”), which included a filing entitled 11 “Answer and Counterclaim” purporting to present arguments on behalf of both Klinger and 12 U.S.A. Home Inspectors. (ECF No. 27.) 13 On August 16, 2024, Plaintiff filed “Plaintiff’s Notice of Dismissal Without 14 Prejudice,” moving to dismiss Klinger from the action without prejudice. (ECF No. 28.) 15 On the same day, Plaintiff filed a “Motion to Strike Amended Reply to Motion for Default 16 Judgment” (“Motion to Strike”), requesting the Court strike Klinger’s Amended Reply 17 (ECF No. 27) because, in relevant part, “Defendant U.S.A. Home Inspectors LLC is a 18 limited liability company. Limited Liability companies [are] not allowed to appear pro se.” 19 (ECF No. 29 at 7.) 20 On September 17, 2024, the Court issued an Order dismissing Klinger without 21 prejudice. (ECF No. 30.) 22 On October 4, 2024, Plaintiff filed a “Motion Allowing Plaintiff to File Second 23 Amended Complaint” (“Motion for Leave to Amend”) seeking the Court’s permission to 24 25

26 27 1 Although Plaintiff titled this pleading “Second Amended Complaint,” he had not yet amended the Complaint prior to this filing. The Court accordingly refers to the operative pleading as the First Amended 28 Complaint. 1 amend the Complaint to properly identify U.S.A. Home Inspectors as “U.S.A. Home 2 Inspectors San Diego, LLC.” (ECF No. 31 at 1–3.) 3 II. THE COURT’S ORDER 4 On November 12, 2024, the Court issued an Order notifying Klinger and U.S.A. 5 Home Inspectors that the Court would not consider any of Klinger’s pro se filings “to the 6 extent they were intended to present arguments on behalf of U.S.A. Home Inspectors” and 7 staying the proceedings for thirty (30) days from its entry to provide “U.S.A. Home 8 Inspectors with time to retain an attorney and instruct the attorney to enter a notice of 9 appearance in this action.” (ECF No. 32 at 3.) 10 The thirty-day period has now elapsed, and the docket reflects that no filings or 11 notices of appearances have been entered in this action since the Order was issued on 12 November 12, 2024. Therefore, the Court reopens this action to rule on the pending Motion 13 for Default Judgment (ECF No. 21), Motion to Strike (ECF No. 29), and Motion for Leave 14 to Amend (ECF No. 31) without considering Klinger’s arguments on behalf of U.S.A. 15 Home Inspectors in his pro se filings. 16 III. MOTION TO STRIKE 17 Plaintiff has moved to strike the Amended Reply (ECF No. 27) filed by Klinger. 18 (ECF No. 29.) Pursuant to Federal Rule of Civil Procedure (“FRCP”) Rule 12(f), “[t]he 19 court may strike from a pleading an insufficient defense or any redundant, immaterial, 20 impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “‘Immaterial’ matter is that which 21 has no essential or important relationship to the claim for relief or the defenses being 22 pleaded.” Fantasy, Inc. v. Fogerty,

(9th Cir. 1993) (internal quotation 23 omitted) (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 24 § 1382, at 706–07 (1990)). 25 The Court dismissed Klinger as a party to this case on September 17, 2024. (ECF 26 No. 30.) Accordingly, as discussed in the Court’s Order, “[t]he Court may not consider any 27 of Klinger’s pro se filings to the extent they were intended to present defenses on behalf of 28 1 U.S.A. Home Inspectors.” (ECF No. 32 at 3.) Because U.S.A. Home Inspectors, the sole 2 remaining defendant in this case, may appear in federal court only through a licensed 3 attorney, the defenses presented in Klinger’s amended reply are immaterial to this action. 4 Therefore, the Court grants Plaintiff’s Motion to Strike (ECF No. 29) and strikes 5 Klinger’s Amended Reply (ECF No. 27). 6 IV. MOTION FOR LEAVE TO AMEND 7 FRCP Rule 15(a) provides that, after a responsive pleading has been served, “a party 8 may amend [its] pleading only by leave of the court or by written consent of the adverse 9 party.” Fed. R. Civ. P. 15(a). Leave to amend “shall be freely given when justice so 10 requires.” Id. 11 Plaintiff’s Motion for Leave to Amend is unopposed. Furthermore, Plaintiff seeks to 12 amend the FAC in order to remove Klinger as a defendant and to “correct [a] scrivener’s 13 error[,] changing the name of Defendant U.S.A. Home Inspectors to U.S.A. Home 14 Inspectors San Diego, LLC.” (See ECF No. 31 at 5; see also ECF No. 31-1.) Applicable 15 here, courts routinely permit amendment to complaints to cure scrivener’s errors contained 16 within the complaint. Sumitomo Realty & Dev. Co. v. Tekuro Kamada Proctor, No. 2:19- 17 cv-01899-GMN-VCF,

, at *2 (D. Nev. Sept. 28, 2020) (granting leave 18 to amend to correct scrivener’s error); Microsoft Corp. v. Chatterjee, No. C20-1800-JCC, 19

, at *1 (W.D. Wash. Aug. 2, 2021) (same). Therefore, the Court grants 20 Plaintiff’s Motion for Leave to Amend (ECF No. 31) and directs Plaintiff to file the 21 proposed Second Amended Complaint (ECF No. 31-1). 22 However, because Plaintiff’s proposed amendment changes Defendant U.S.A. 23 Home Inspectors’ name to U.S.A. Home Inspectors San Diego, LLC, and U.S.A. Home 24 Inspectors has not yet filed a notice of appearance in this action, Plaintiff must re-effectuate 25 service on the appropriate defendant. See 4B Fed. Prac. & Proc. Civ. § 1146 (4th ed.) (“The 26 service provisions of [FRCP] Rule 5 apply only to parties who have appeared. Thus[,] it is 27 clear that amended or supplemental pleadings must be served on parties who have not yet 28 1 || appeared in the action in conformity with [FRCP] Rule 4.”’). The Court will order the Clerk 2 || of the Court to re-issue the summons as to U.S.A. Home Inspectors San Diego, LLC once 3 || Plaintiff files the proposed Second Amended Complaint. V. MOTION FOR DEFAULT JUDGMENT 5 Because Plaintiff has moved to amend the FAC and the Court has granted □□□□□□□□□□□ 6 ||motion, the FAC on which Plaintiff seeks default judgment is no longer the operative 7 ||complaint. Thus, the Court denies Plaintiff's Motion for Default Judgment as moot, to be 8 ||re-filed only after Plaintiff files the proposed Second Amended Complaint, properly 9 || effectuates service on U.S.A. Home Inspectors San Diego, LLC, moves for the Clerk’s 10 ||Entry of Default, and the Clerk of the Court enters default against the appropriate 11 || defendant. 12 CONCLUSION 13 IT IS HEREBY ORDERED that the Motion to Strike (ECF No. 29) is granted. The 14 || Clerk of the Court shall strike the Amended Reply (ECF No. 27). 15 IT IS FURTHER ORDERED that the Motion for Leave to Amend (ECF No. 31) is 16 || granted. Plaintiff shall file the proposed Second Amended Complaint (ECF No. 31-1), 17 || entitled “Second Amended Complaint,” within seven (7) days of the entry of this Order. If 18 |}and when the Second Amended Complaint is filed, the Clerk of the Court shall re-issue the 19 ||summons as to U.S.A. Home Inspectors. 20 IT IS FURTHER ORDERED that the Motion for Default Judgment (ECF No. 21) is 21 denied without prejudice as moot. 22 73 Dated: January 13, 2025 Nitta Z. Ma Hon, William Q. Hayes United States District Court 25 26 27 28