UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
May 28, 2008
DONOVAN DELMARE, ON BEHALF OF HIMSELF, AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFF,
SUNGARD HIGHER EDUCATION, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER GRANTING PLAINTIFF'S MOTION TO AMEND THE FIRST AMENDED COMPLAINT
Plaintiff Donovan Delmare seeks to amend the First Amended Complaint to add a claim under the Labor Code Private Attorney General Act. No opposition having been filed, the Court decides the matter on the papers submitted and without oral argument under Civil Local Rule 7.1(d.1). For the reasons discussed below, the Court GRANTS the motion (Doc. No. 26).
On September 13, 2007, Plaintiff commenced this action against Sungard Higher Education, Inc., and Systems and Computer Technology Corporation (collectively, "Defendants"). Plaintiff alleges that Defendants improperly classified Plaintiff and other employees as exempt from overtime, and improperly denied these employees overtime compensation.
The original complaint asserted seven causes of action. On October 23, 2007, Plaintiff filed a First Amended Complaint that eliminated the second cause of action for Failure to Reimburse Expenses in Violation of F.L.S.A. § 207(e)(2). Plaintiff now seeks to file a Second Amended Complaint adding a cause of action under the Labor Code Private Attorney General Act ("PAGA").
Rule 15(a) of the Federal Rules of Civil Procedure provides that after a responsive pleading has been served, a party may amend its complaint only with leave of court and leave "shall be freely given when justice so requires." FED. R. CIV. P. 15(a). Granting leave to amend rests in the sound discretion of the district court. See International Ass'n of Machinists & Aerospace Workers v. Republic Airlines, 761 F.2d 1386, 1390 (9th Cir. 1985). In deciding whether to grant leave to amend, district courts should consider several factors including undue delay, prejudice to the opposing party, futility of the amendment, bad faith and whether the plaintiff has previously amended the complaint. See Sisseton-Wahpeton Sioux Tribe v. U.S., 90 F.3d 351, 355 (9th Cir. 1996).
As an initial matter, the Court grants Plaintiff's motion to amend based on Defendants' failure to file an opposition as required by Civil Local Rule 7.1(f.3.c). Under this Local Rule, "[i]f an opposing party fails to file papers in the manner required by Local Rule 7.1(e)(2), that failure may constitute a consent to the granting of that motion or other ruling by the court." The Ninth Circuit has held that pursuant to such local rules, a district court may properly grant a motion for failure to respond. See generally Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.1995) (per curiam) (affirming dismissal for failure to file timely opposition to motion to dismiss where plaintiff had notice of the motion and ample time to respond). Accordingly, relying on Civil Local Rule 7.1(f.3.c), the Court deems Defendants' failure to oppose Plaintiff's motion to amend as consent to its merits, and the Court GRANTS the motion.
Aside from Defendants' failure to oppose the motion, the Court also finds that Plaintiff has satisfied the standard for granting a motion to amend. Here, Plaintiff did not unduly delay in moving to amend the First Amended Complaint. Plaintiff could not add the PAGA claim until after expiration of the waiting period following notice to the relevant state agency. The waiting period expired on March 10, 2008, and Plaintiff filed the motion to amend on April 7, 2008. Thus, Plaintiff moved promptly to amend.
Furthermore, having independently examined the other Rule 15 factors, the Court concludes that they also weigh in favor of granting leave to amend. The proposed amendment will not change the nature of the case. Additionally, in light of the lack of any opposition to Plaintiff's motion, the Court finds that Defendants will not be prejudiced by the amendment and that the motion to amend is not brought in bad faith. Accordingly, the Court GRANTS Plaintiff's motion for leave to amend.
III. CONCLUSION AND ORDER
For the foregoing reasons, the Court GRANTS Plaintiff's motion for leave to amend (Doc. No. 26). Plaintiff is given 5 days from the date of this order to file and serve the Second Amended Complaint, which shall be identical to Exhibit 1 attached to the Declaration of Aparajit Bhowmik.
IT IS SO ORDERED.
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