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Hackett v. Proctor & Gamble Co.

February 27, 2008

SHANA HACKETT, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
THE PROCTOR & GAMBLE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT AND DENYING PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE

The matters before the Court are Plaintiff's motion for leave to file a Second Amended Complaint (Doc. # 18) and Plaintiff's request for judicial notice in support of the motion for leave to file a Second Amended Complaint. (Doc. # 18-4).

BACKGROUND

On October 10, 2006, Plaintiffs Shana Hackett, Jon Rose, and Darlene Harsh filed a class action Complaint pursuant to FED R. CIV. P. 23(a) and (b)(3) against Defendant Proctor & Gamble Company. (Doc. # 1). In the Complaint, Plaintiffs alleged Defendant "falsely promoted" Pantene ProV hair products as being able to "strengthen and repair damaged hair." (Doc. # 1). Plaintiffs asserted claims pursuant to California's Unfair Competition Law (UCL), California's False Advertising Law (FAL), and sections 17200 and 17500 et seq. of California's Business and Professions Code. (Doc. # 1). In addition, the Complaint asserted claims for negligent misrepresentation, intentional misrepresentation, breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for purpose, among other things. (Doc. # 1).

On October 26, 2006, Plaintiffs filed a First Amended Complaint, adding Tiana Woods as a class action plaintiff. (Doc. # 3). On November 8, 2006, Defendant filed an Answer to the First Amended Complaint. (Doc. # 4).

On December 14, 2007, Plaintiff Hackett filed the pending motion for leave to file a Second Amended Complaint. (Doc. # 18). Plaintiff also filed the pending request for judicial notice. (Doc. # 18-4). On January 8, 2008, Defendant opposed Plaintiff's motion to amend. (Doc. # 19). On January 14, 2008, Plaintiff filed a reply in support of the motion to amend. (Doc. # 21).

LEGAL STANDARDS

FED R. CIV. P. 15 (a) provides that, after a responsive pleading has been served, "a party may amend [its] pleading only by leave of the court or by written consent of the adverse party . . . ." FED R. CIV. P. 15 (a). Leave to amend "shall be freely given when justice so requires." Id. While leave to amend is not granted automatically, see Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990), the policy of free amendment is to be applied with "extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003); see also SAES Getters S.p.A. v. Aeronex, Inc., 219 F. Supp. 2d 1081, 1085 (S.D. Cal. 2002) ("courts are cautioned to apply the policy of free amendment of pleadings with extreme liberality"). The decision to grant or deny leave to amend the pleadings is left to the district court's discretion, see Jackson, 902 F.2d at 1387, however, the general rule is that amendment is permitted unless the opposing party makes a showing of undue delay, bad faith, undue prejudice, or futility of amendment on the part of the moving party. SAES Getters, 219 F. Supp. 2d at 1086 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

FED R. EVID. R. 201 provides that "a judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FED R. EVID. R. 210, subd. (b) (West 2006). "A court shall take judicial notice if requested by a party and supplied with the necessary information." FED R. EVID. R. 210, subd. (d) (West 2006). A court may take judicial notice of the existence of matters of public record, such as a prior order or decision, but not the truth of the facts cited therein. See Lee v. City of Los Angeles, 250 F.3d 668, 689-690 (9th Cir. 2001); see also Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953) (holding a court may take judicial notice of records and reports of administrative bodies).

DISCUSSION

I. Plaintiff's Motion for Leave to Amend

Plaintiff seeks to amend the First Amended Complaint to narrow the issues in this case and to conform the Complaint to requirements laid out in this Court's Order in Gonzalez v. Proctor & Gamble. Defendant contends that Plaintiff's motion to amend should be denied because (1) it will prejudice Defendant since the First Amended Complaint was filed more than one year before Plaintiff filed the currently pending motion to amend, during which time Defendant has already taken depositions and conducted discovery on at least 28 Pantene products, and (2) it allows Plaintiff's counsel an inappropriate level of control over this action. (Doc. # 19at 1). Defendant also claims that any leave to amend should be conditioned on the former co-Plaintiffs paying deposition costs and fees. (Doc. # 19at 1).

A. Plaintiff's Delay in Filing the Motion to Amend and Prejudice to Defendant

Defendant claims its efforts to depose the former co-Plaintiffs would be "nullif[ied]" by the Second Amended Complaint, and that the costs associated with those depositions would be wasted if leave to amend is granted. However, Defendant's efforts in deposing the co-Plaintiff's resulted in exactly what Defendant sought--dismissal of the co-plaintiffs--and the Court cannot conclude that the dismissal prejudices Defendant. (Doc. # 19at 8). Further, although Defendant claims to be prejudiced by responding to discovery regarding "at least 28 different Pantene products" that were "put at issue by the allegations in the First ...


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