United States District Court, S.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
AMEND [ECF NO. 7]
Honorable Barry Ted Moskowitz, United States District Judge.
before the Court are Plaintiff's Motion to Remand and
Motion for Leave to Amend. (ECF No. 7). The action arises out
of a personal injury claim filed in San Diego Superior Court
against Defendants Costco Wholesale Corporation
(“Costco”) and Does 1-100. Defendant Costco
removed the action to federal court.
reasons set forth below, the Court GRANTS Plaintiff's
Motion for Leave to Amend. (ECF No. 7).
October 12, 2017, Plaintiff Andres Torres allegedly tripped
over a low-level display while shopping at Costco, causing
physical injuries. Plaintiff filed a Complaint in San Diego
Superior Court on August 28, 2018. (ECF No. 11-1, Exh. A
“Compl.”). The Complaint asserts two causes of
action-negligence and premises liability-and states that
Plaintiff suffered injuries “including, but not limited
to, a shattered elbow requiring emergency room
surgery.” (Compl. ¶ 22). The Complaint largely
relies on a theory of vicarious liability against Costco, but
states that Does 1-100, including individuals, each
“bear some legal responsibility and are liable to
Plaintiff.” (Compl. ¶ 5). The Prayer for Relief
seeks damages to be determined at trial, as well as other
unascertained fees and costs. (Compl. at 16).
served Costco on September 12, 2018, and Costco answered the
Complaint on September 27, 2019. Costco served discovery on
Plaintiff in October 29, 2018 and Plaintiff responded to
Costco's interrogatories on December 31, 2018. (ECF No.
1-5). Plaintiff's responses indicate that Plaintiff lost
full function of his right dominant arm, impacting his
quality of life and requiring ongoing physical therapy, and
that various providers had recommended elbow reconstruction
and replacement surgery. (ECF No. 1-5). Plaintiff's
responses also included an attachment of Plaintiff's
medical bills, which included a four day hospital stay and
totaled over $100, 000 as of February 2018. (ECF No. 11-1
¶ 6; ECF No. 7-6). Costco filed a notice of removal
premised on diversity jurisdiction on January 9, 2019. (ECF
has authorized district courts to exercise jurisdiction over
“all civil actions where the matter in controversy
exceeds the sum or value of $75, 000, exclusive of interest
and costs, and is between . . . citizens of different
States.” 28 U.S.C. § 1332(a). The removal statute
specifies that defendant may remove any civil action brought
in a state court that meets section 1332(a)'s criteria,
unless defendant “is a citizen of the State in which
such action is brought.” 28 U.S.C. § 1441(b). The
removing defendant always has the burden of establishing that
removal is proper, and the court resolves all ambiguity in
favor of remand to state court. Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992).
the short period of time when pleadings may be amended
“as a matter of course, ” thereafter “a
party may amend its pleading only with the opposing
party's written consent or the court's leave.”
Fed.R.Civ.P. 15(a)(2). Courts “should freely give leave
when justice so requires, ” Fed.R.Civ.P. 15(a)(2), and
they must apply the policy favoring amendment “with
extreme liberality.” Morongo Band of Mission
Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).
Courts apply the same policy of liberality in granting leave
to amend “whether the amendment will add causes of
action or parties.” DCD Programs Ltd. v.
Leighton, 833 F.2d 183, 186 (9th Cir. 1987);
Fed.R.Civ.P. 21 (“the court may at any time, on just
terms, add or drop a party”). Factors that may support
denial of leave to amend include bad faith, undue delay,
prejudice to the opposing party, and futility of amendment.
DCD Programs Ltd., 833 F.2d at 185; Foman v.
Davis, 371 U.S. 178, 182 (1962). However, “[u]ndue
delay by itself... is insufficient to justify a motion to
amend.” Bowles v. Reade, 198 F.3d 752, 758
(9th Cir. 1999).
asserts that removal was improper because Defendant's
notice of removal was untimely, and that Plaintiff's
proposed First Amended Complaint (“FAC”) would
deprive the Court of subject ...