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O'm and Associates, LLC, An Illinois Limited Liability Company, D/B/A O'malley and Associates v. Brendan K. Ozanne

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 25, 2011

O'M AND ASSOCIATES, LLC, AN ILLINOIS LIMITED LIABILITY COMPANY, D/B/A O'MALLEY AND ASSOCIATES;
PRESERVE CAPITAL, LLC, AN ILLINOIS LIMITED LIABILITY COMPANY; AND
MBM SETTLEMENTS, LLC, AN ILLINOIS LIMITED LIABILITY COMPANY,
PLAINTIFFS,
v.
BRENDAN K. OZANNE, BRIAN C. DAWSON, AND DAWSON & OZANNE, A CALIFORNIA GENERAL PARTNERSHIP, AS ESCROW AGENT;
MATTHEW STOEN, INDIVIDUALLY AND AS MANAGER AND AGENT FOR KODIAK FAMILY, LLC, A NEVADA LIMITED LIABILITY COMPANY;
KODIAK FAMILY, LLC, INDIVIDUALLY AND AS AGENT FOR XYZ CORPORATION, DEFENDANTS.

The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

(1) TENTATIVE ORDER REGARDING DEFENDANT MATTHEW STOEN'S MOTION TO DISMISS AND PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT (2) ORDER DENYING AS MOOT EX PARTE MOTION FOR SHORTENED TIME

On January 31, 2011, Defendant Matthew Stoen ("Stoen") filed a motion to dismiss Counts I, III, IV, V, VI, VIII, and IX of Plaintiffs' complaint. (Doc. No. 104.) A hearing on the motion to dismiss is set on March 14, 2011. On February 23, 2011, Plaintiffs filed a motion for leave to amend complaint in lieu of response to the motion to dismiss. (Doc. No. 23.) A hearing is set on the motion for leave to amend on March 28, 2011. On February 23, 2011, Plaintiffs also filed an ex parte motion for shortened briefing on its motion for leave to amend complaint to have it heard with the motion to dismiss on March 14, 2011. (Doc. No. 110.)

Federal Rule of Civil Procedure 15(a) allows a party leave to amend its pleading once as a matter of right prior to service of a responsive pleading. Thereafter, "a party may amend that party's pleading only by leave of the court or by written consent of the adverse party and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). The decision whether to grant leave to amend "is entrusted to the sound discretion of the trial court." Jordan v. County of Los Angeles, 669 F.2d 1311, 1324 (9th Cir.1982), vacated on other grounds, 459 U.S. 810 (1982). Leave to amend is freely granted when justice requires. Moore v. R.G. Industries, Inc., 789 F.2d 1326, 1328 (9th Cir. 1986).

Exercising its discretion and in the interests of justice and judicial economy, the Court is inclined to grant the motion for leave to amend the complaint. Granting Plaintiff leave to amend would render moot Defendant Stoen's motion to dismiss counts of the current complaint. If Defendants wish to oppose this tentative order, recognizing that leave to amend is freely granted, Defendants are directed to do so on or before March 4, 2011. In light of this schedule, the Court also denies as moot Plaintiff's request for setting the motion for leave to amend for March 14, 2011.

IT IS SO ORDERED.

20110225

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