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Carrie Turnette v. Fulton

June 5, 2012

CARRIE TURNETTE,
PLAINTIFF,
v.
FULTON, FRIEDMAN & GULLACE,
DEFENDANT.



The opinion of the court was delivered by: John A. HOUSTONUnited States District Judge

ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT LLP, ) [DOC. # 18] AND VACATING HEARING DATE

INTRODUCTION

Pending before the Court is plaintiff's motion for leave to file a first amended complaint. Defendant filed a notice of non-opposition to the motion. After a review of the motion papers, the Court GRANTS plaintiff's motion.

BACKGROUND

Plaintiff Carrie Turnette ("plaintiff") filed the instant complaint on November 9, 2011, alleging two causes of action against defendant Fulton, Friedman & Gullace, LLP ("defendant") based on claims for violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. and the Rosenthal Fair Debt Collections Practice Act ("Rosenthal Act"), Cal. Civil Code §§ 1788-1788.32. Defendant filed an answer to the complaint on February 3, 2012. A case management conference was held on April 9, 2012, after which a scheduling order was issued setting forth deadlines for pretrial proceedings, including a final pretrial conference set for April 15, 2013.

Plaintiff timely filed her motion for leave to file a first amended complaint on April 26, 2012. Defendant filed its notice of non-opposition to the motion on June 4, 2012.

DISCUSSION

1. Legal Standard

Plaintiff moves to amend her complaint pursuant to Federal Rule of Civil Procedure 15. The filing of an amended complaint or counter-claim after a responsive pleading has been filed may be allowed by leave of court. FED.R.CIV.P. 15(a). Rule 15(a) provides a party the right to amend: once as a matter of course within 21 days after serving it or, if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b),

(e), or (f), whichever is earlier. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

The Supreme Court has instructed lower courts to heed the language of Rule 15(a) to grant leave freely when justice requires. Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973). Because Rule 15(a) mandates that leave to amend should be freely given when justice so requires, the rule is to be interpreted with "extreme liberality." United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).

Granting leave to amend rests in the sound discretion of the trial court. International Ass'n of Machinists & Aerospace Workers v. Republic Airlines, 761 F.2d 1386, 1390 (9th Cir. 1985). This discretion must be guided by the strong federal policy favoring the disposition of cases on the merits. DCD Programs Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Because Rule 15(a) favors a liberal policy, the nonmoving party bears the burden of demonstrating why leave to amend should not be granted. Genetech, Inc. v. Abbott Laboratories, 127 F.R.D. 529 (N.D. Cal. 1989).

However, even though leave to amend is generally granted freely, it is not granted automatically. See Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). Four factors are considered when a court determines whether to allow amendment of a pleading. These are prejudice to the opposing party, undue delay, bad faith, and futility. See Forsyth v. Humana, 114 F.3d 1467, 1482 (9th Cir. 1997); DCD Programs, 833 F.2d at 186; see also Foman v. Davis, 371 U.S. 178, 182 (1962).

These factors are not equally weighted; the possibility of delay alone, for instance, cannot justify denial of leave to amend. See DCD Programs, 833 F.2d at 186; Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). The single most important factor is whether prejudice would result to the non-movant as a consequence of the amendment. ...


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