United States District Court, N.D. California
ORDER GRANTING LEAVE TO FILE SECOND AMENDED ANSWER
RE: DKT. NO. 38
PHYLLIS J. HAMILTON United States District Judge.
the court is defendants' motion for leave to file a
second amended answer. Dkt. 38. The matter is fully briefed
and suitable for decision without oral argument. Accordingly,
the hearing set for April 26, 2017 is VACATED. Having read
the parties' papers and carefully considered their
arguments and the relevant legal authority, and good cause
appearing, the court GRANTS the motion for the following
November 15, 2016, plaintiff Erickson Productions, Inc.
("Erickson") filed suit against Welbrook Senior
Living, LLC, CMD Real Estate Group, LLC, and Health Care
Building Investment, LLC (collectively "Welbrook"
or "defendants"). Dkt. 1. The sole claim was for
copyright infringement regarding a photograph owned by
Erickson that was allegedly used without permission on
Welbrook's website. Compl. ¶¶ 3-11. Defendants
answered and filed a third-party complaint against Upfront
SEO ("Upfront"), alleging that Upfront sold the
photo in question to Welbrook, and asserting claims for
breach of warranty and the implied duty of good faith and
fair dealing against Upfront on that basis. Dkt. 21
¶¶ 59-88. Erickson has filed a separate third-party
complaint against Upfront. Dkt. 30.
first answer was filed on January 24, 2017. Dkt. 20. That
same day, Welbrook filed an amended answer. Dkt. 21.
Paragraph 41 of the first amended answer alleges that the
copyright claim was “barred in whole or in part by
authorization, acquiescence, release, laches, waiver,
estoppel, unclean hands and/or implied license.” Dkt.
21 ¶ 41. Paragraph 44 asserts a “copyright
misuse” defense. Id. ¶ 44.
on these allegedly “baseless” defenses, Erickson
served (but never filed) a motion for Rule 11 sanctions
against Welbrook. Dkt. 42, McCulloch Decl. Ex. B at 3-4. In
response, Welbrook purported to file a “first amended
answer” on March 8. Dkt. 35. The answer at Docket
removes the “laches” paragraph and a
lack-of-originality defense, combines the “copyright
misuse” and “unclean hands” defenses, and
adds more factual detail to the copyright misuse paragraph.
Compare Dkt. 21 ¶¶ 41-44 with
Dkt. 35 ¶¶ 41-43.
answer at Docket 35 was improperly filed because Welbrook did
not seek leave of the court or the consent of the opposing
parties. See Fed.R.Civ.P. 15(a). On March 15,
Welbrook filed a motion for leave to file a second amended
answer (“SAA”). Dkt. 36. The SAA attached to that
motion, however, appears to be the same as the operative
first amended answer. Compare Dkt. 21 with
March 22, Welbrook withdrew its initial motion and the answer
at Docket 35, and filed a “corrected” motion for
leave to file an SAA. Dkt. 38. Again, however, the proposed
SAA actually attached to the motion, Docket 38-1, appears to
be the same as the operative first amended answer.
Compare Dkt. 21 with Dkt. 38-1. This motion
is now fully briefed and pending before the court.
Federal Rule of Civil Procedure 15, a party may amend its
pleading as matter of course within 21 days. Fed.R.Civ.P.
15(a)(1). Thereafter, amendment requires either the opposing
party's written consent or the court's leave.
courts should “freely give leave when justice so
requires.” Id. In deciding whether to grant a
motion for leave to amend, the court considers bad faith,
undue delay, prejudice to the opposing party, repeated
failure to cure deficiencies by pervious amendment, futility
of amendment, and whether the moving party has previously
amended the pleading. In re W. States Wholesale Natural
Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013);
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1051 (9th Cir. 2003). Of these factors, the
consideration of prejudice to the opposing party carries the
greatest weight. Eminence Capital, 316 F.3d at 1052.
“The party opposing amendment bears the burden of
showing prejudice.” See DCD Programs, Ltd. v.
Leighton, 833 F.2d 183, 187 (9th Cir.1987).