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Iguacu, Inc v. Antonio Cabrera Mano Filho

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


March 8, 2012

IGUACU, INC.,
PLAINTIFF,
v.
ANTONIO CABRERA MANO FILHO, DEFENDANT.

The opinion of the court was delivered by: Richard Seeborg United States District Judge

**E-filed 3/8/12**

United States District court For the Northern District of California

ORDER GRANTING LEAVE TO FILE FIRST AMENDED COMPLAINT

Plaintiff Iguacu, Inc. moves for leave to file a First Amended Complaint.*fn1 In essence the 20 proposed amendments would, (1) delete allegations relating to projects and transactions that Iguacu 21 has learned through discovery did not come to fruition such that it would have a claim for 22 commissions on those projects and transactions; (2) "clarify" allegations regarding the transactions 23 that Iguacu contends constituted a "sale" as defined in the parties' agreement, thereby giving rise to 24 a claim for commissions; (3) add a new claim for relief seeking reformation of the definition of 25 "sale" in the parties' agreement, should reformation prove necessary, and; (4) conform the prayer to 26 the claims as amended, and add a prayer for interest. Defendant Antonio Cabrera Mano Filho ("Cabrera") does not object to the deletion of allegations relating to matters for which Iguacu is no 3 longer seeking commissions, or to the addition of a prayer for interest. Cabrera contends, however, 4 that Iguacu should not be permitted at this juncture to expand the scope of its claim for commissions 5 either by alleging its own understanding as to what transactions meet the definition of "sale" or by 6 seeking reformation of that definition. 7

Under Rule 15 of the Federal Rules of Civil Procedure, "leave [to amend] shall be freely 8 given when justice so requires." Absent any "apparent or declared reason-such as undue delay, bad 9 faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by 10 amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be 'freely given.' " Foman v. Davis, embraces "the principle that the 371 U.S. 178, 182 (1962). Rule 15 thus purpose of pleading is to facilitate a proper decision on the merits." Id. at 181-82 (quoting Conley v. Gibson, 355 U.S. 41, 48 (1957)). In short, the policy permitting amendment is to be applied with 15 (citation omitted). Factors which merit departure from the usual "[l]iberality in granting a plaintiff leave to amend" include bad faith and futility. Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999) 18 758. 20 attempts to expand the definition of "sale" in the parties' agreement is futile. Although this case has 22 been pending for an extended period of time, Iguacu has adequately shown that it acted with 23 appropriate diligence, given the procedural history of this action. Cabrera asserts the amendments 24 are "futile" because Iguacu's "characterization of the transactions under which it is allegedly 25 entitled to a commission is exceedingly broad and unsupported by the language of the Agreement or 26 the understanding of the parties." While that may be an accurate description of Cabrera's defense to 27 the claims, it falls far short of establishing that Iguacu's contentions are futile. 28

"Prejudice is the 'touchstone of the inquiry under rule 15(a),'" and the "party opposing amendment 'bears the burden of showing prejudice.'" Eminence Capital, 316 F.3d at 1052 "extreme liberality." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)

Undue delay, standing alone, is insufficient to justify denial of a motion for leave to amend. Id. at 19

Here, Cabrera insists that Iguacu has unduly delayed in seeking leave to amend, and that its

(citations omitted). Because Cabrera has not met his burden to show that allowing the amendment 2 here would result in any undue prejudice to him, the motion must be granted. 3 4 5

IT IS SO ORDERED. 6 7


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