United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
FILE AMENDED COMPLAINT (Doc. 35)
K. Oberto, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Motion for Leave to File First
Amended Complaint (the “Motion to
Amend”). (Doc. 35.) For the reasons provided
herein, the Court GRANTS this motion. (Id.)
Rule of Civil Procedure 15(a)(2) provides that “a party
may amend its pleading only with the opposing party's
written consent or the court's leave.” Rule
15(a)(2) further states that “[t]he court should freely
give leave when justice so requires.” “This
policy is ‘to be applied with extreme
liberality.'” Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quoting
Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d
708, 712 (9th Cir. 2001)). “This liberality in granting
leave to amend is not dependent on whether the amendment will
add causes of action or parties.” United States v.
Salera, No. 2:09-cv-02290-GEB-DAD, 2013 WL 1284311, at
*1 (E.D. Cal. Mar. 28, 2013) (quoting DCD Programs, Ltd.
v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987)).
factors commonly considered to determine the propriety of a
motion for leave to amend are (1) bad faith, (2) undue delay,
(3) prejudice to the opposing party, and (4) futility of
amendment.” G.P.P., Inc. v. Guardian Prot. Prods.,
Inc., Case No. 1:15-cv-00321-SKO, 2016 WL 4041194, at *5
(E.D. Cal. July 27, 2016) (citing Foman v. Davis,
182 (1962)); cf. Bonin v. Calderon, 59 F.3d 815, 845
(9th Cir. 1995) (noting that, in addition to these four
factors, courts “often consider” whether
“the party has previously amended his pleadings”
(citing W. Shoshone Nat'l Council v. Molini, 951
F.2d 200, 204 (9th Cir. 1991))). Among these factors,
“the consideration of prejudice to the opposing party .
. . carries the greatest weight.” Eminence Capital,
LLC, 316 F.3d at 1052 (citation omitted); see also
Bonin, 59 F.3d at 845 (“Futility of amendment can,
by itself, justify the denial of a motion for leave to
amend.”). 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.” Eminence Capital, LLC, 316
F.3d at 1052 (citation omitted); cf. Bowles v.
Reade, 198 F.3d 752, 758 (9th Cir. 1999) (“Undue
delay by itself . . . is insufficient to justify denying a
motion to amend.” (citation omitted)).
first to bad faith, Defendants raise two pertinent arguments
as to why Plaintiff brings the Motion to Amend in bad faith.
(See Doc. 36 at 11-12.) First, Defendants contend
that “Plaintiff has sought to add allegations, parties,
and causes of action in violation of the Court's [o]rder
after the prior motion to dismiss without explanation for its
reasons for violating the Court's [o]rder.”
(Id. at 11.) However, in its order entered on June
14, 2017, the Court denied Defendants' request to strike
portions of Plaintiff's prior amended complaint and
provided “Plaintiff an opportunity to demonstrate that
amendment is appropriate.” (Doc. 34 at 6-7.) As the
Court explicitly permitted Plaintiff to seek amendment, the
Court is not persuaded by Defendants' argument regarding
Plaintiff adding additional allegations and claims in the
proposed amended complaint. Cf. Salera, 2013 WL
1284311, at *1 (“This liberality in granting leave to
amend is not dependent on whether the amendment will add
causes of action or parties.” (quoting DCD
Programs, Ltd., 833 F.2d at 186)).
Defendants argue that the proposed amended complaint
“contradicts the allegations of the [original
complaint], which justifies denial of the present [Motion to
Amend].” (Doc. 36 at 11.) The Court also disagrees with
this argument. The Court is not aware of―and Defendants
have not cited―any additional allegations that conflict
with those provided in Plaintiff's original complaint.
Cf. NetApp, Inc. v. Nimble Storage, Inc., Case No.
5:13-CV-05058-LHK (HRL), 2015 WL 400251, at *10 (N.D. Cal.
Jan. 29, 2015) (finding that amendment would be futile where
a proposed new allegation “would contradict the
allegations [the plaintiff] made in its” first
complaint). To the contrary, the new allegations that
Defendants cite in their briefing merely provide additional
context to Plaintiff's claims. (See Doc. 36 at
7-9.) Absent any indication of bad faith, the Court finds
that this factor weighs in favor of permitting amendment.
futility, there is no indication in the record that
Plaintiff's proposed amendment would be futile. The Court
therefore finds that the futility factor weighs in favor of
granting the Motion to Amend.
undue delay, the Court previously noted that “[t]his
case is in its infancy and the Court has yet to enter a
scheduling order.” (Doc. 34 at 6.) As this case is in a
preliminary posture, the Court finds that Plaintiff did not
unduly delay in seeking amendment.
given the present posture of this matter, Defendants would
suffer little to no harm due to the amendment. Defendants
nonetheless contend that “[t]he discovery” that
will be required to address Plaintiff's allegations in
the proposed amended complaint will be costly. (Doc. 36 at
12.) However, litigation inherently involves costs and the
potential to incur such costs in the first
instance―i.e., where, as here, the parties
have yet to engage in any discovery―is insufficient to
demonstrate the requisite prejudice. See, e.g.,
Gilman v. Davis, No. CIV. S-05-830 LKK/GGH, 2009 WL
577768, at *4 (E.D. Cal. Mar. 4, 2009) (stating that
“[d]efending a lawsuit . . . necessarily involves
significant costs” and “[t]hese costs are not
themselves prejudicial”); see also Artemus v.
Louie, Case No. 16-cv-00626, 2017 WL 747368, at *4 (N.D.
Cal. Feb. 27, 2017) (“[M]erely having to defend against
additional claims does not show prejudice.” (citing
United States v. Webb, 655 F.2d 977, 980 (9th Cir.
1981))); cf. AmerisourceBergen Corp. v. Dailysist W.,
Inc., 465 F.3d 946, 953 (9th Cir. 2006) (finding that
the defendant would be prejudiced by amendment where the
plaintiff sought to “advance different legal theories
and require proof of different facts” in the middle of
discovery); Witkin v. Lotersztain, No. 2:15-cv-0638
MCE KJN P, 2016 WL 7404764, at *4 (E.D. Cal. Dec. 22, 2016)
(“Courts have found undue delay weighing against
granting leave to amend where a motion for leave to amend is
filed near or after the close of discovery.”
(collecting cases)). The Court therefore finds that amendment
will not result in prejudice to Defendants and, consequently,
this factor weighs in favor of granting the Motion to Amend.
summary, the Court finds that the pertinent factors weigh in
favor of permitting amendment. The Court therefore finds that
it is appropriate to permit Plaintiff to amend his
these reasons, the Court GRANTS Plaintiff's Motion to
Amend. (Doc. 35.) The Court therefore ORDERS Plaintiff to
file the proposed amended complaint attached to the Motion to
Amend, (See Doc. 35, Ex. 3), as the “Second
Amended Complaint” by no later than August 2, 2017.