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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

JAMES P. DEFAZIO, THERESA

BEETHAM, BRENDA DIMARO,

KATHLEEN ELLIS, DELANE

HUMPHRIES, HALLIE LAVICK,

MICHAEL MCNAIR, SONYA PACE,

JUDY SEAY, NANCY RUSSELL

STANTON, and CINDY WORTH,

NOS. CIV. 04-1358 WBS GGH

 05-0559 WBS GGH

Plaintiffs, 05-1726 WBS GGH

CONSOLIDATED 

v. ORDER DENYING MOTION FOR LEAVE

TO FILE FIFTH AMENDED

COMPLAINT

HOLLISTER, INC., HOLLISTER

EMPLOYEE SHARE OWNERSHIP

TRUST, THE FIRM OF JOHN

DICKINSON SCHNEIDER, INC.,

SAMUEL BRILLIANT, RICHARD I.

FREMGEN, DONALD K. GRONEBERG,

CHARLES H. GUNDERSON, ALAN F.

HERBERT, JAMES A. KARLOVSKY,

LORI KELLEHER, JAMES J.

MCCORMACK, CHARLES C.

SCHELLENTRAGER, HOWARD I.

SIMON, LORETTA L. STEMPINSKI,

MICHALE C. WINN, and RICHARD

T. ZWIRNER,

Defendants.

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1 Plaintiff Kathleen Ellis is represented by separate

counsel and does not join her co-plaintiffs in the instant

motion.

2

 ----oo0oo----

Currently before the court is plaintiffs’1 motion for

leave to file a Fifth Amended Complaint alleging additional

claims against defendants under the Employee Retirement Income

Security Act (ERISA), 29 U.S.C. §§ 1001-1461, and to re-allege

their previously stricken fraud allegations against defendants

Herbert, Karlovsky, and McCormack. 

At this time, neither the court nor defendants (nor

possibly even the plaintiffs themselves) are able to surmise

exactly how plaintiffs’ allegations will appear in their proposed

Fifth Amended Complaint, because plaintiffs have inexplicably

failed to heed Local Rule 5-137(c), which requires that

plaintiffs attach a proposed amended complaint as an exhibit to

their motion for leave to amend. E. Dist. of Cal. Local R.

5-137(c) (“If filing a document requires leave of Court, such as

an amended complaint when an answer is on file, counsel shall

attach the document proposed to be filed as an exhibit to the

motion . . . .”).

Because the form and/or manner in which plaintiffs

intend to allege these new facts or information is altogether

unclear, it would be disingenuous on the part of the court to

grant plaintiffs’ motion absent the ability to review the

complaint they seek to file. Accordingly, the court will deny

plaintiffs’ motion for leave to amend their complaint. See

Pobursky v. Madera County, No. 07-0611, 2008 WL 544430, at *2

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3

(E.D. Cal. Feb. 26, 2008) (“[T]he Court is unable to decide

Plaintiffs’ motions to amend because they did not submit a

proposed Second Amended Complaint with their motions.”); Johnson

v. St. Mary, No. 06-0508, 2007 WL 1100507, at *1 (E.D. Cal. Apr.

11, 2007) (acknowledging the denial of a previous motion to amend

where plaintiff’s “motion failed to comply with the requirement

of Local Rule 5-137(c) that he lodge a proposed amended complaint

with the court.”)

IT IS THEREFORE ORDERED that plaintiffs’ motion for

leave to amend the Fourth Amended Complaint be, and the same

hereby is, DENIED without prejudice.

DATED: June 12, 2008

 

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