United States District Court, E.D. California
LOUIS J. STEINER, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
FILE FIRST AMENDED COMPLAINT AND VACATING SEPTEMBER 13, 2017
HEARING (ECF NO. 4)
before the Court is Plaintiff's motion for leave to file
an amended complaint which is set for hearing on September
to the Local Rules of the United States District Court,
Eastern District of California, Defendant's opposition to
the motion for leave to file an amended complaint was due on
August 30, 2017. L.R. 230(c). Defendant did not file a timely
opposition to the motion or a statement of non-opposition.
The Local Rule provides that a party who fails to file a
timely opposition is not entitled to be heard in opposition
to the motion at oral argument. L.R. 230(c). Accordingly, the
hearing set for September 13, 2017, shall be vacated; and the
parties are not required to appear on that date.
March 10, 2017, Plaintiff Louis Steiner
(“Plaintiff”) filed this action against the
United States of America (“Defendant”) to recover
allegedly erroneously collected penalties. (ECF No. 1.)
Defendant filed an answer on May 26, 2017. (ECF No. 9.) On
July 12, 2017, the scheduling order in this action issued.
(ECF No. 12.) Pursuant to the scheduling order, the date to
file amendments to the pleadings is August 10, 2017. (ECF No.
12 at 2.)
August 9, 2017, Plaintiff filed a motion for leave to file an
amended complaint. (ECF No. 13.)
Rule 15(a) of the Federal Rules of Civil Procedure, leave to
amend shall be freely given when justice so requires.
Fed.R.Civ.P. 15(a)(2). In the Ninth Circuit, federal courts
are to apply this policy with extreme liberality. Owens
v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712
(9th Cir. 2001) In 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.”
Eminence Capital, LLC, 316 F.3d at 1052.
complaint, Plaintiff alleged that penalties in the amount of
$208, 002.55 were erroneously assessed against him. In the
current motion, Plaintiff asserts that the amount alleged in
the complaint is the entire penalty paid and not the amount
that is being sought as a refund for overpayment of the
penalties. Plaintiff is seeking leave to file an amended
complaint to correct the amount of the the alleged
Plaintiff's complaint originally sought the entire amount
of the penalty collected and he seeks to amend the complaint
to allege only the amount of the alleged over collection.
Since Plaintiff wants to amend his complaint to correct the
amount sought to the lower amount of the alleged over
collection, the Court finds that Defendant will suffer no
prejudice by allowing amendment of the complaint.
asserts that he discovered the error in the amount sought in
the complaint during the Rule 26 conference and moved
promptly for leave to amend the complaint. Further, Plaintiff
has sought leave to amend prior to the deadline to file a
motion to amend established by the July 12, 2017 scheduling
order. The Court ...