This matter came before the court on August 27, 2010, for hearing on plaintiff's motion for leave of court to file a first amended complaint. Nicholas G. Hood, Esq. appeared telephonically for the moving party. Defendants Richard Weyenberg and Juanita Weyenberg, who are proceeding pro se, appeared in court in propria persona.
Federal Rule of Civil Procedure 15 governs the filing of an amended complaint after an answer has been filed by any defendant served with the original complaint. The rule requires the opposing party's written consent or the court's leave to file an amended complaint. "The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). In exercising its discretion to grant or deny leave to amend, the district court must balance the factors of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988) ("Valid reasons for denying leave to amend include undue delay, bad faith, prejudice, and futility.").
After considering all written materials filed in connection with plaintiff's motion and the parties' arguments at the hearing, the court finds that plaintiff has properly sought leave to amend at an early stage of the litigation and is seeking to add a party who appears to be an appropriate defendant. Defendants have not cited any legal authority in support of their opposition to plaintiff's motion, and they have not demonstrated that they will be prejudiced if plaintiff is granted leave to file the proposed first amended complaint.
Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's June 25, 2010 motion (Doc. No. 21) for leave of court to file a first amended complaint is granted. Plaintiff shall file its first amended complaint within one week after August 27, 2010, and shall serve the first amended complaint upon defendants Richard and Juanita Weyenberg by mail.
2. Within 21 days after being served with plaintiff's first amended complaint, defendants Richard Weyenberg and Juanita Weyenberg shall file a properly captioned and properly signed answer to the first amended complaint, together with a proof of service showing that a copy of the answer was served by mail upon plaintiff's counsel.
3. Upon the filing of the first amended complaint, the Clerk of the Court shall issue summons for service of the new defendant named in the pleading.
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