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Erickson Productions Inc. v. Welbrook Senior Living, LLC

United States District Court, N.D. California

April 7, 2017

ERICKSON PRODUCTIONS INC., Plaintiff,
v.
WELBROOK SENIOR LIVING, LLC, et al., Defendants.

          ORDER GRANTING LEAVE TO FILE SECOND AMENDED ANSWER RE: DKT. NO. 38

          PHYLLIS J. HAMILTON United States District Judge.

         Before 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 reasons.

         BACKGROUND

         A. Procedural History

         On 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.

         Welbrook's 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.

         Based 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 35[1] 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.

         The 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 Docket 36-1.

         On 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.

         DISCUSSION

         A. Legal Standard

         Under 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. Fed.R.Civ.P. 15(a)(2).

         However, 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).

         B. ...


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