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Pajouh v. California Business Bureau, Inc.

United States District Court, S.D. California

October 3, 2014

MAJID PAJOUH, Plaintiff,
v.
CALIFORNIA BUSINESS BUREAU, INC., Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the Motion for Leave to File First Amended Complaint filed by Plaintiff Majid Pajouh. (ECF No. 26).

I. Background

On October 18, 2013, Plaintiff Majid Pajouh, then represented by counsel, commenced this action by filing the Complaint. (ECF No. 1). On March 24, 2014, Plaintiff's counsel, Crosby Connolly of the law firm Hyde & Swigart, filed an ex parte motion to withdraw as counsel. (ECF No. 9). On April 7, 2014, District Judge James Lorenz granted the motion to withdraw as counsel. (ECF No. 10). On June 12, 2014, Magistrate Judge Jill Burkhardt issued a pretrial scheduling order, providing that "[a]ny motion to join other parties, to amend the pleadings, or to file additional pleadings shall be filed on or before July 15, 2014." (ECF No. 16 at 1). On July 25, 2014, Plaintiff, proceeding pro se, filed a document titled First Amended Complaint. (ECF No. 23). On July 29, 2014, Judge Lorenz noted that "Plaintiff was not entitled to file an amended complaint" and ordered that "Plaintiff must file a motion for leave to amend on or before July 31, 2014 or the hearing will be vacated." (ECF No. 24). On July 29, 2014, Judge Lorenz recused himself from this case, and the case was reassigned to this Court. (ECF No. 25).

On July 30, 2014, Plaintiff filed the Motion for Leave to File First Amended Complaint. (ECF No. 26). On August 29, 2014, Defendant California Business Bureau, Inc. filed an opposition, accompanied by the Declaration of Paul C. Bauducco ("Bauducco Decl."). (ECF Nos. 32-33). On September 8, 2014, Plaintiff filed a reply. (ECF No. 38).

II. Contentions of the Parties

Plaintiff asserts that the additional claims he wishes to assert in a first amended complaint could have been brought in the Complaint, but his former counsel refused to do so. Plaintiff also asserts that he made his best efforts to comply with Magistrate Judge Jill Burkhardt's scheduling order by filing a First Amended Complaint on July 15, 2014, the deadline set by Magistrate Judge Jill Burkhardt for "[a]ny motion to join other parties, to amend the pleadings, or to file additional pleadings...." (ECF No. 16 at 1). Plaintiff asserts that he was unaware that he had to file a motion for leave to amend, and thought he could file a first amended complaint. Plaintiff requests leave to add two new claims: (1) violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. section 1681-1681u, and (2) violation of the California Unfair Competition Law ("UCL"), California Business and Professions Code section 17200.

Defendant contends that the Magistrate Judge's scheduling order must be modified for "good cause" in order to allow amendment because Plaintiff's motion was filed after the July 15, 2014 deadline in the scheduling order. (ECF No. 32 at 5). Defendant asserts that Plaintiff was aware that he needed to file a motion for leave to amend before July 15, 2014 because the topic was discussed at length during a case management conference before the Magistrate Judge. Defendant contends that it will be "severely prejudiced" if the motion is granted because the September 30, 2014 discovery cut-off and other deadlines will need to be continued, and Defendant, unlike Plaintiff, is incurring attorneys' fees. Id. at 6.

III. Discussion

Federal Rule of Civil Procedure 15 mandates that leave to amend "be freely given when justice so requires." Fed.R.Civ.P. 15(a). "This policy is to be applied with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quotation omitted). In determining whether to allow an amendment, a court considers whether there is "undue delay, " "bad faith, " "undue prejudice to the opposing party, " or "futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962). "Not all of the [ Foman ] factors merit equal weight.... [I]t is the consideration of prejudice to the opposing party that carries the greatest weight." Eminence Capital, 316 F.3d at 1052 (citation omitted). "The party opposing amendment bears the burden of showing prejudice." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). "Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, 316 F.3d at 1052.

Federal Rule of Civil Procedure 16(b)(4) provides that a pretrial scheduling order "may be modified only for good cause and with the judge's consent. Fed.R.Civ.P. 16(b)(4).

In this case, Judge Lorenz amended the Magistrate Judge's scheduling order by extending Plaintiff's deadline from July 15, 2014 to July 30, 2014. (ECF No. 24). The Court concludes that it need not modify any scheduling in order to grant Plaintiff leave to amend.[1]

After review of the motion, the proposed first amended complaint, and the filings of the parties, the Court concludes that Defendants have not made a sufficiently strong showing of the Foman factors to overcome the presumption under Rule 15(a) in favor of granting leave to amend. See Eminence Capital, 316 F.3d at 1052. Although the discovery deadline was September 30, 2014, Defendant has been aware of Plaintiff's intention to file a first amended complaint since the March 18, 2014 early neutral evaluation conference. (ECF No. 32 at 4). Plaintiff also filed the "First Amended Complaint" on July 15, 2014 and the present motion on July 30, 2014, well before the discovery deadline. (ECF No. 23). The Court will defer consideration of any challenge to the merits of the proposed first amended complaint until after the amended pleading is filed. See Netbula v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003) ("Ordinarily, courts will defer consideration of the challenges to the merits of a proposed amended pleading until after leave to amend is granted and the amended pleading is filed.").

IV. Conclusion

IT IS HEREBY ORDERED that the Motion for Leave to File First Amended Complaint is GRANTED. (ECF No. 26). The Clerk of the Court shall strike the document titled "First Amended Complaint." (ECF No. 23). Plaintiff shall file the First Amended Complaint, as set forth in Exhibit A of the Motion for Leave to File First Amended Complaint (ECF No. 26-3), with ten (10) days from the date this Order is filed. Defendants shall respond to the First Amended Complaint within fourteen (14) days from the date the First Amended Complaint is re-filed. Fed.R.Civ.P. 15(a)(3).


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