The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REGARDING THE UNITED STATES OF AMERICA'S SECOND (Document 88)
MOTION TO AMEND THE COMPLAINT RELEVANT PROCEDURAL BACKGROUND
On October 12, 2012, Plaintiff United States of America filed its Notice of Motion and Second Motion to Amend Complaint. The matter was originally set before District Judge Anthony W. Ishii on November 19, 2012. (Doc. 88.)
In a signed minute order dated October 16, 2012, the motion was reset to November 16, 2012, at 9:30 a.m., before the undersigned. (Doc. 91.)
Defendants Acacia Corporate Management, LLC, Mariposa Holdings, Inc., and Michael Scott Ioane did not file an opposition to the motion.
On November 5, 2012, the motion was taken off calendar and under submission for written findings. As explained below, Plaintiff's motion will be granted.
Under Rule 15(a) of the Federal Rules of Civil Procedure, a plaintiff may amend his complaint once "as a matter of course," and without leave of court, before a response has been filed. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). However, a party can only amend the pleading with the opposing party's written consent or the court's leave once a responsive pleading has been filed. Fed. R. Civ. P. 15(a)(2). Here, Defendants filed responsive pleadings to Plaintiff's second amended complaint on October 7, 2012, thus, leave of Court is required. (See Docs. 78 & 89.)
The United States Supreme Court has stated that
[i]n the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by 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, 371 U.S. 178, 182 (1962).
This policy is "to be applied with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citations omitted). The Ninth Circuit has summarized the factors to be considered by the court to include: (1) undue delay; (2) bad faith; (3) prejudice to the opponent; and (4) futility of amendment. Loehr v. Ventura County Cmty. Coll. Dist., 743 F.2d 1310, 1319 (9th Cir. 1984). However, not all of these factors merit equal weight. Eminence Capital, LLC, v. Aspeon, Inc., 316 F.3d at 1052. It is the consideration of prejudice that carries the ...