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Jeffrey Altman v. Ho Sports Company

December 2, 2010



This is a state law products liability case brought by Plaintiff Jeffrey Altman ("Altman") against Defendants HO Sports Company, Inc. ("HOS"). The product at issue is a wakeboard boot. The active complaint in this case is the Second Amended Complaint ("SAC"). The SAC was filed on December 9, 2009. On August 26, 2010, Altman filed a motion to amend his complaint with the Magistrate Judge. Altman sought to add three new causes of action: negligent misrepresentation, intentional misrepresentation, and false advertising. On September 16, 2010, the Magistrate Judge denied the motion. On September 30, 2010, Altman filed this motion to reconsider the Magistrate Judge's ruling. For the reasons that follow, Altman's motion will be denied.


Plaintiff's Argument Altman argues that the five factors that a court is to consider under Federal Rule of Civil Procedure 15 weigh in favor of allowing him to file a third amended complaint.

First, Altman argues that no undue prejudice will result if amendment is allowed because he is willing to stipulate to a continuance of either the discovery deadline or the trial date. *fn1

Second, Altman argues that there is no undue delay because, in April 2010, he informed HOS that he wanted to wait until he deposed Ms. Zimmer before amending the complaint. Due to the premature birth of Ms. Zimmer's child, her deposition was not taken until August 10, 2010. Within days of the deposition, HOS was contacted regarding a stipulation to file an amended complaint. Further, HOS failed to produce responsive discovery, which delayed in the discovery of the facts that are pled in the proposed amended complaint.

Third, as Magistrate Judge Thurston found, the motion to amend was not brought in bad faith.

Fourth, there has not been repeated failures to cure deficiencies. Although two prior amended complaints were filed, neither sought to add the three new proposed causes of action. The claims in the active complaint relate to HOS's knowledge that the current boot was improperly designed, yet still placed the boot out to the public. The proposed allegations relate to the fact that HOS set forth changes to the advertisements without knowledge as to the veracity of the statements. While claims of testing were previously known, the fact that HOS did not seek to identify any testing on the product before placing it on the market was not known until August 2010.

Fifth, the proposed amendment is not futile. Although the Magistrate Judge thought that the false advertising claim appears to be moot, there were no concerns about mootness or futility as to the other two causes of action.

Defendant's Opposition

HOS argues that Altman is improperly including arguments and evidence that were not presented to the Magistrate Judge. HOS also argues that there has been no showing that the Magistrate Judge's findings and conclusions were either clearly erroneous or contrary to law. The Magistrate Judge's rulings each have a basis in the record and are supported by proper analysis. *fn2

Magistrate Judge's Ruling

In denying Altman leave to amend, the Magistrate Judge analyzed the appropriate five factors for deciding a motion to amend under Rule 15. See Court's Docket Doc. No. 78; cf. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). The Magistrate Judge found that Altman was aware in November 2009 that HOS had no documents regarding testing of the boot and was also aware in December 2009 of the advertising brochure at issue. See id. at p. 4. Further, at his deposition, Altman testified about his concern over the sufficiency of the testing as contrasted with statements made in advertising. See id. at 5. The Magistrate Judge concluded that Altman was aware of the bases for the new causes of action at the time he filed the SAC. See id.

With respect to undue delay, the Magistrate Judge found that there was undue delay because the documents that supported the new causes of action were in Altman's possession since "the end of last year," i.e. November/December 2009, and Zimmer's deposition did not provide facts that support the new causes of action. Id. at 6. Rule 11 did not require Altman to have every piece of evidence before amending a complaint, rather Rule 11 allows an allegation to be made if the allegation will likely have support after a reasonable time for investigation and discovery. See id. at 7. Further, in the moving papers Altman admitted that, in the beginning of 2010, he had informed HOS of his intention to included a ...

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