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Mark Kravis, Inc. v. Franklin Fueling Systems

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 20, 2008

MARK KRAVIS, INC., PLAINTIFF,
v.
FRANKLIN FUELING SYSTEMS, INC., ET AL., DEFENDANTS.

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

ORDER

The matter before the Court is the Motion for Leave to File Second Amended Complaint (Doc. # 51) filed by Plaintiff Mark Kravis, Inc.

On July 18, 2008, Plaintiff filed the Motion for Leave to File Second Amended Complaint. Plaintiff seeks to amend his Complaint to add a separate cause of action for violation of the Wholesale Act, to correct procedural errors and to clarify the amount of damages sought. Plaintiff contends that adding a cause of action based on the Wholesale Act will provide Plaintiff with additional remedies, but does not complicate the issues in the case. Plaintiff contends that the "other proposed changes to the operative complaint are non-critical in nature and merely correct procedural errors and clarify the amount of damages sought by Plaintiff as has been revealed in discovery." Mot. to Amend, p. 2.

On August 4, 2008, Defendants filed a notice of non-opposition (Doc. # 56). Defendants state: "Defendants do not oppose Plaintiff's Motion for Leave to File Second Amended Complaint." Non-Opposition, p. 1-2.

Rule 15 of the Federal Rules of Civil Procedure mandates that leave to amend "be freely given when justice so requires." Fed. R. Civ. P. 15(a). This policy is applied with "extraordinary liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Once an answer to the complaint has been filed, as is the case here, courts may deny leave to amend where the proposed amendment would be futile, where it is sought in bad faith, where it will create undue delay, or where "undue prejudice to the opposing party will result." Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992); Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991).

Having reviewed the Motion and the supporting documents, and having a notice of non-opposition from Defendants, the Court GRANTS the Motion for Leave to File Second Amended Complaint (Doc. # 51). Plaintiff shall file a Second Amended Complaint that adds an additional cause of action based on the Wholesale Act, corrects procedural errors and clarifies the amount of damages sought no later than Monday, September 22, 2008.

WILLIAM Q. HAYES United States District Judge

20080820

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