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Cross v. Padi America's Inc.

United States District Court, Ninth Circuit

June 14, 2013

COLIN R. CROSS, individually, and as successor in interest to RONDA CROSS, deceased pursuant to Code of Procedure 337.30, Plaintiff,
PADI AMERICA'S INC., et. al., Defendants.


M. JAMES LORENZ, District Judge.

On February 21, 2013, Plaintiff Colin R. Cross commenced this action against Defendants PADI America's Inc. ("PADI"), Wyndham Hotels and Resorts, LLC ("Wyndham"), and Sunshine Dive and Charter ("Sunshine"). Thereafter, PADI removed the action to this Court. Plaintiff now moves for leave to file a First Amended Complaint ("FAC") under Federal Rule of Civil Procedure 15(a)(2). PADI is the only defendant opposing this motion.

The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 21.) For the following reasons, the Court GRANTS Plaintiff's motion for leave to file a FAC.


Plaintiff, a resident of British Colombia, Canada, was the husband of Ronda Cross, deceased. (Compl. ¶ 2.) PADI[1] is incorporated and headquartered in Rancho Santa Margarita, California. ( Id. ¶ 9.) PADI promulgates rules, standards, and certification of divers, diving equipment, dive masters, dive instructors, and diving equipment maintenance throughout the world. ( Id. )

On March 3, 2012, Ronda Cross and her cousin, Roxanne Cross, both PADI-certified divers, went diving while on vacation in Cabo San Lucas, Baja California Sur, Mexico. ( Id. ¶¶ 11-13.) Ronda Cross and her cousin allegedly hired a dive master to accompany them on their dive from Conquest Divers of Cabo San Lucas. ( Id. ¶ 12.) Plaintiff alleges that air tanks that were used by his wife on her ill-fated dive were filled by Sunshine, at the request of Conquest Divers. ( Id. )

During their dive, Roxanne Cross began to have difficulties with her dive mask and surfaced with the aid of the PADI-certified divemaster, allegedly leaving Ronda underwater alone. (Compl. ¶ 14.) Plaintiff states that this is contrary to PADI protocol, and believes that neither the dive master nor the tank filler had PADI training as was advertised. ( Id. ¶ 14.) Left alone underwater, Ronda Cross asphyxiated and died on March 3, 2012. ( Id. ) Plaintiff alleges that the air tank filled by Defendant Sunshine was "negligently and carelessly filled and maintained so as to allow dangerous and toxic substances to be in Ronda Cross' air tank." ( Id. ) He also adds that Sunshine is a tenant of Wyndham's Cabo San Lucas resort, and Wyndham recommended Sunshine's services to the public and, in particular, Ronda Cross. ( Id. ¶ 15.)

In his complaint, Plaintiff asserts five causes of action: (1) negligence against PADI; (2) loss of consortium against PADI; (3) negligence against Sunshine; (4) negligence against Wyndham; and (5) "Personal Injuries." Since the filing of his complaint, Plaintiff has discovered additional information leading him to request leave to file an amended complaint. Plaintiff's proposed FAC adds an Unfair Business Practices cause of action against PADI and Wyndham, and additional factual allegations.

At the time Plaintiff filed his complaint, his counsel did not know the true ownership of Wyndham. Plaintiff's counsel discovered a franchising relationship between Wyndham and the proposed new defendants AMX Baja Holdings and Steadfast Companies. As a result, he seeks to add AMX Baja Holdings and Steadfast Companies as defendants to the action, in addition to his new factual allegations. Because PADI is the only defendant opposing, Plaintiff's counsel contacted PADI's counsel to obtain PADI's written consent to the amendment. PADI did not consent. Consequently, Plaintiff now moves for leave to file an amended complaint to add parties for their role as franchisees of Wyndham.


Rule 15(a) of the Federal Rules of Civil Procedure provides that after a responsive pleading has been served, a party may amend its complaint only with the opposing party's written consent or the court's leave. Fed.R.Civ.P. 15(a). "The court should freely give leave when justice so requires, " and apply this policy with "extreme liberality." Id.; DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). However, leave to amend is not to be granted automatically. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990)). Granting leave to amend rests in the sound discretion of the district court. Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 1331 (9th Cir. 1996).

The Court considers five factors in assessing a motion for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of the amendment, and (5) whether the plaintiff has previously amended the complaint. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004); see also Foman v. Davis, 371 U.S. 178, 182 (1962). The party opposing amendment bears the burden of showing any of the factors above. See DCD Programs, 833 F.2d at 186. Of these factors, prejudice to the opposing party carries the greatest weight. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). However, absent prejudice, a strong showing of the other factors may support denying leave to amend. See id.

"Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Futility is a measure of the amendment's legal sufficiency. "[A] proposed amendment is futile only if no set of facts can be proved under the amendment... that would constitute a valid and sufficient claim or defense." Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). Thus, the test of futility is identical to the one applied when considering challenges under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Baker v. P. Far E. Lines, Inc., 451 F.Supp. 84, 89 (N.D. Cal. 1978); see Saul v. United States, 92 ...

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