ORDER DENYING MOTION TO MODIFY STAY AS TO CROSS-COMPLAINT AND VACATING MAY 3, 2019 MOTION HEARING

Re: Dkt. No. 35

JOSEPH C. SPERO, Chief Magistrate Judge.

In this action, Plaintiff Jesika Vado brought a putative class action against Champion and Pet Food Express in Alameda Superior Court, alleging that she had purchased Champion's Acana and Orijen brand pet foods at a Pet Food Express store and that these products did not live up to the claims that the defendants made about them and contained harmful chemicals. Pet Food Express asserted a cross-claim for indemnity against Champion. Subsequently, Champion removed the action to this Court under the Class Action Fairness Act ("CAFA") and brought a motion to stay the action pending resolution of virtually the same claims asserted against Champion in an action currently pending in the Central District of California. Pet Food Express brought a motion to remand, arguing that the "local controversy" exception to CAFA jurisdiction applied. Pet Food Express did not, however, oppose the motion to stay. The Court granted the motion to stay and denied the motion to remand in its February 14, 2019 Order. See Docket No. 34.

Now Pet Food Express brings a motion to modify the stay ("Motion"), arguing that the stay should be modified so that it can proceed with its claim for indemnification against Champion. Pet Food Express asserts that its indemnification claim is ripe because if it prevails on that claim it may be entitled to an award of attorneys' fees and it has already incurred attorneys' fees in this case. As there has been no change in the circumstances that relate to the Court's decision to stay this action, the Court finds that Pet Food Express's Motion is untimely and that its arguments have been waived. See Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) ("A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation."). In any event, the Court concludes that Pet Food Express's claim for indemnification (and any fees to which it might be entitled if it prevails on that claim) is premature. The Court DENIES the Motion and vacates the hearing set for May 3, 2019.

IT IS SO ORDERED.