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Estate of Zahau v. Shacknai

United States District Court, S.D. California

March 13, 2014

ESTATE OF REBECCA ZAHAU, et al., Plaintiffs,
ADAM SHACKNAI, et al., Defendants.


THOMAS J. WHELAN, District Judge.

On February 14, 2013, Plaintiffs Estate of Rebecca Zahau, Estate of Robert Zahau, Mary Zahau-Leohner, and Pari Z. Zahau commenced this action against Defendants Adam Shacknai, Dina Shacknai, and Nina Romano for assault, battery, negligence, and wrongful death. Plaintiffs now move for leave to file an amended complaint. Defendants oppose.

The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motion for leave to file an amended complaint.


Plaintiffs allege that on or around the morning of July 13, 2011, Defendants "conspired to plan, and did in fact, murder" Rebecca Zahau in Coronado, California. (PFAC ¶ 12.) On that date, Ms. Zahau was found dead, naked, bound and gagged, with a rope noose around her neck. (Id. ¶ 13.) The cause of death was strangulation, "caused by either manual strangulation before she was hung, or from being hung with a rope noose around her neck from the second story deck of the Coronado vacation home at which she was staying." (Id.) The Coroner for the County of San Diego determined that Ms. Zahau died on July 13. (Id.) Plaintiffs allege that "[e]ach of the Defendants named herein were present at the location where the murder of Rebecca occurred and all of them actively participated in the planning, implementation, execution and subsequent concealment of the scheme to murder Rebecca." (Id. ¶ 14 (emphasis removed).)

On July 12, 2013, Plaintiffs commenced this action, asserting claims for assault, battery, negligence, and wrongful death. In October, Defendants filed two separate motions to dismiss. Plaintiffs failed to oppose those motions. Consequently, on November 12, 2013, the Court granted Defendants' motions based on Plaintiffs failure to oppose, and dismissed the complaint. Plaintiffs now move for leave to amend under Federal Rule of Civil Procedure 15(a). Defendants oppose.


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 , 928 F.2d 829, 843 (9th Cir. 1991) ("A district court does not err in denying leave to amend... where the amended complaint would be subject to dismissal." (citation omitted)).


A. The Court Lacks Subject Matter Jurisdiction over the PFAC because of a Lack of Complete Diversity.

"The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between... citizens of different States[.]" 28 U.S.C. § 1332. "[D]iversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff." Owen Equip. & Erection Co. v. Kroger , 437 U.S. 365, 373 (1978) (emphasis omitted).

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. ...

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