The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is Defendant's Motion for Leave to File Counterclaim and Request for Judicial Notice (ECF No.10) and Plaintiff's Request for Judicial Notice (ECF No. 15).
On February 26, 2010, a Complaint filed by Plaintiff D.R. Horton Los Angeles Holding Co., Inc. ("D.R. Horton") was removed from state court by Defendant American Safety Indemnity Co. ("ASIC"). (ECF No. 1). D.R. Horton alleges that it was engaged in a real estate development project and entered into a subcontractor agreement with Ebensteiner Co. for grading work on the project. Id. at 10. Ebensteiner Co. purchased insurance policies from ASIC and named D.R. Horton as an additional insured and third-party beneficiary of ASIC's obligations to Ebensteiner Co. Id. at 10-11.
D.R. Horton alleges that several complaints and cross-complaints were filed against it and it received several notices to builder which were all insured event covered by the ASIC policies ("the underlying actions"). Id. at 11-12. D.R Horton alleges that it made a timely claim for benefits under the policies regarding the underlying actions but ASIC breached its duty of good faith and fair dealing by failing to provide D.R. Horton with a defense, withholding or delaying payments, failing to properly investigate D.R. Horton's claims, and refusing and failing to respond to D.R. Horton's request for benefits and coverage. Id. at 12.
D.R. Horton also alleges that ASIC breached its contractual obligations and seeks declaratory relief "that [ASIC is] obligated to defend and indemnify [D.R. Horton] under said Policies; and, [t]hat [ASIC is] obligated to pay for the cost of [D.R. Horton's] defense in [the underlying actions] and to pay expenses and other settlement costs in connection with the [the underlying actions]." Id. at 14.
On April 12, 2010, ASIC filed an Answer in which ASIC raised twenty-four affirmative defenses but did not assert any counterclaims and did not seek to join any additional parties. (ECF No. 4). On June 4, 2010, the parties engaged in settlement negotiations with the Magistrate Judge. (ECF. No. 8).
On July 9, 2010, ASIC filed this Motion for Leave to File Counterclaim which included a Request for Judicial Notice. (ECF No. 10). On August 2, 2010, D.R. Horton filed an Opposition. (ECF No. 13). On August 9, 2010, ASIC filed a Reply. (ECF No. 14). On August 10, 2010, D.R. Horton filed a Request for Judicial Notice Regarding American Safety's Motion for Leave to File Counterclaim.*fn1 (ECF No. 15).
Under Rule 15(a) of the Fed. R. Civ. P., "The court should freely give leave [to amend] when justice so requires." The amendment of a pleadings is to be permitted unless the opposing party makes a showing of undue delay, bad faith, undue prejudice, or futility of an amendment on the part of the moving party. Foman v. Davis, 371 U.S. 178, 182 (1962). "An amendment to add a counterclaim will be governed by Rule 15." Fed. R. Civ. P. 13 (2009 Amendment).
ASIC seeks to add counterclaims for declaratory judgment against D.R. Horton, Ebensteiner Co., and Roe insurers*fn2 and seeks to assert a counterclaim for equitable contribution against Roe insurers. (ECF No. 10 at 3). ASIC contends that adjudicating the issues separately would result in multiple actions arising from the same facts, and a substantial risk of inconsistent adjudications and obligations. Id. ASIC contends that D.R. Horton will not be prejudiced by the proposed counterclaim and joinder because the counterclaims are "based on the same facts and documents as [D.R. Horton's] Complaint and require no new or different discovery, the case is in its early states, and in fact no formal discovery has yet taken place." Id. ASIC also explains that it has not been dilatory because it first raised the possibility of adding counterclaims at the Early Neutral Evaluation Conference which took place on June 4, 2010, and sought a stipulation from D.R. Horton allowing the additions. Id. at 11.
D.R. Horton contends that allowing ASIC to add the Roe insurers would complicate the case and prejudice D.R. Horton because the Roe insurers would likely file cross-complaints and counterclaims against each other adding delay and complexity. (ECF No. 13 at 3, 6). D.R. Horton contends that ASIC could file a claim for contribution after liability is established. Id. D.R. Horton contends that ASIC's equitable contribution claim is defective because ASIC has not paid anything towards D.R. Horton's defense under the policies. Id. D.R. Horton contends that ASIC's equitable contribution counterclaim also fails because any liability ASIC could incur would be as a result of its own breaches which precludes reimbursement from other insurers. Id.
D.R. Horton's third claim in the Complaint seeks declaratory ...