United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING
PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED
COMPLAINT (ECF 12, 13, 14, 15, 16)
before the Court is Plaintiffs Nora Oushana (“Plaintiff
Oushana”) and Scarlet Karamian's (“Plaintiff
Karamian”) motion for leave to file a second amended
complaint,  which was referred to the undersigned
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 7, 2017, the Court vacated the April 12, 2017
hearing and took the matter under submission.
August 10, 2016, Plaintiffs filed the complaint in this
action in the Superior Court of California, County of
Stanislaus, alleging a claim for general negligence. (ECF No.
1 at 10-14.) On August 30, 2016, Plaintiff filed an
amendment naming Lowe's Home Center, LLC,
(“Defendant Lowe's”) as a defendant. Also on
that date, Plaintiffs filed a request for dismissal without
prejudice as to Defendants Lowe's Companies, Inc., and
Lowe's HIW, Inc. The dismissal was entered on August 30,
2016. On September 12, 2016, Defendant Lowe's filed its
answer to Plaintiff's complaint. On October 24, 2016,
Plaintiffs each served a statement of damages. On November
16, 2016, Plaintiffs served a case management conference
statement. On November 18, 2016, Defendant Electrolux Home
Products, Inc. (“Defendant EHP”) filed its answer
to Plaintiff's complaint and served a request for prior
November 23, 2016, Defendant Lowe's removed this action
to the Eastern District of California. (ECF No. 1.) On
January 17, 2017, the parties filed a joint scheduling
report. (ECF No. 8.) On January 24, 2017, the Court held a
scheduling conference, and the pretrial scheduling order
issued in this action on January 26, 2017. (ECF Nos. 10, 11.)
filed a motion for leave to file an amended complaint and a
request for judicial notice on March 10, 2017. (ECF No. 12.) On
March 28, 2017, Defendant EHP filed an opposition to the
motion and an objection to Plaintiffs' request for
judicial notice. (ECF No. 13.) On March 29, 2017, Defendant
Lowe's filed an opposition to the motion and objections
to Plaintiffs' request for judicial notice. (ECF No. 14.)
On April 5, 2017, Plaintiffs filed a reply to Defendant
EHP's opposition and a reply to Defendant Lowe's
opposition. (ECF Nos. 15, 16.)
seek leave to file a second amended complaint under Rule 15
of the Federal Rules of Civil Procedure. Under Rule 15(a) of
the Federal Rules of Civil Procedure, a party may amend the
party's pleading once as a matter of course at any time
before a responsive pleading is served. Fed.R.Civ.P.
15(a)(1). Otherwise, a party may amend only by leave of the
court or by written consent of the adverse party, and leave
shall be freely given when justice so requires.
Civ. P. 15(a)(2).
determining whether to grant leave to amend, the court
considers five factors: “(1) bad faith; (2) undue
delay; (3) prejudice to the opposing party; (4) futility of
amendment; and (5) whether the plaintiff has previously
amended his complaint.” Nunes v. Ashcroft, 375
F.3d 805, 808 (9th Cir. 2004). The factors are not given
equal weight and futility alone is sufficient to justify the
denial of a motion to amend. Washington v. Lowe's HIW
Inc., 75 F.Supp.3d 1240, 1245 (N.D. Cal. 2014), appeal
dismissed (Feb. 25, 2015). “[I]t is the consideration
of prejudice to the opposing party that carries the greatest
weight.” Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “Absent
prejudice, or a strong showing of any of the remaining [ ]
factors, there exists a presumption under Rule 15(a) in favor
of granting leave to amend.” Id.
of the Federal Rules of Civil Procedure provides that the
schedule may be modified only for good cause. Fed.R.Civ.P.
16(b)(4). Therefore, the moving party who seeks to amend a
complaint and modify the scheduling order must first
demonstrate that good cause exists for the modification of
the scheduling order and, if good cause is shown, the party
must demonstrate that the proposed amendment is proper under
Rule 15. See Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 608 (9th Cir. 1992).
seek to file a second amended complaint adding claims for
products liability-negligence liability, products
liability-strict liability, actual fraud/deceit, negligent
misrepresentation, constructive fraud, and breach of the
implied warranty of fitness. Plaintiffs assert that
Defendants will suffer no prejudice if they are allowed to
amend the complaint and that they do not have a bad faith or
dilatory motive in seeking to amend their complaint.
Defendant EHP opposes the motion on the grounds that there is
strong evidence of undue delay, undue prejudice to
Defendants, and futility of the amendments. Defendant
Lowe's opposes the motion on the grounds that the motion
to amend is the product of undue delay, is not supported by
good cause, is prejudicial to Defendant Lowe's, and is
proposed in bad faith and/or is futile.
Defendant Lowe's argues that Plaintiffs have not shown
good cause to amend, the Court first addresses whether the
good cause standard applies to the instant motion for leave
to file the second amended complaint.
Good Cause to Amend Scheduling Order
scheduling order in this matter provided that “[a]ll
proposed amendments must (A) be supported by good cause
pursuant to Fed.R.Civ.P. 16(b) if the amendment requires any
modification to the existing schedule, see Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.
1992), and (B) establish, under Fed.R.Civ.P. 15(a), that such
an amendment is not (1) prejudicial to the opposing party,
(2) the product of undue delay, (3) proposed in bad faith, or
(4) futile, see Forman v. Davis, 371 U.S. 178, 182
the proposed amendment does not require any modification to
the existing schedule. Therefore, pursuant to the scheduling
order, Plaintiffs do not need to show good cause pursuant to
Fed.R.Civ.P. 16(b) in order to amend the complaint.
Amendment Pursuant to Rule 15
Court now discusses whether the five factors that courts
consider when deciding a motion for leave to amend weigh in
favor of ...