United States District Court, S.D. California
ORDER CONTINUING PRETRIAL CONFERENCE; AND ORDER
GRANTING IN PART MOTION FOR LEAVE TO AMEND ANSWER
Larry Alan Burns Chief United States District Judge.
counsel filed a motion requesting either leave to be absent
from the final pretrial conference, or a continuance of the
pretrial conference. (Docket no. 91.) Except for a concern
about scheduling conflicts on certain dates, Defendant did
not oppose the request. The Court GRANTS the
motion, and the final pretrial conference is
CONTINUED from August 5, 2019 to
December 2, 2019 at 12:15 p.m.
for Leave to Amend Answer
two weeks after discovery closed, Defendant filed a motion
for leave to file an amended answer and counterclaims.
(Docket no. 68.) Because it was improperly filed without a
hearing date, did not comply with Civil Local Rule
15.1(b)'s redline requirement, and included requests
directed toward both the District Judge and Magistrate Judge,
the Court summarily denied it. (Docket no. 69.) The Court,
however, permitted Defendant to refile it as a noticed motion
for leave to amend (to be decided by the undersigned District
Judge) and a motion to extend the discovery deadline by three
months and to take additional discovery (to be decided by the
counterclaims are based on damages Defendant claims it has
suffered and will suffer because Plaintiff worked for a
competing company. The motion points out that additional
discovery will be needed to support these counterclaims.
Judge Mitchell Dembin denied the discovery motion, finding
that Defendant had not been diligent. (Docket no. 83.)
Defendant has not objected to this finding or Judge
Dembin's denial of the motion, thus waiving any objection
to the finding or ruling. See Fed. R. Civ. P. 72(a).
The motion for leave to amend has now been fully briefed and
is ready for decision.
to amend is to be given freely when justice so requires,
Fed.R.Civ.P. 15, and courts have interpreted this to mean
that leave should be granted with “extreme
liberality.” Morongo Band of Mission Indians v.
Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Nevertheless,
leave is not automatically granted, and can be denied for
reasons including undue prejudice, bad faith, futility, and
undue delay. DCD Programs, Ltd. v. Leighton, 833
F.2d 183, 186 (9th Cir. 1987). The factors are not of equal
weight, and that delay by itself does not ordinarily warrant
denying leave to amend. Id. The policy of liberality
in granting leave to amend does not depend on whether the
amendment will add causes of action or parties. Id.
party opposing amendment-here, Plaintiff-bears the burden of
persuasion that leave should not be granted. Eminence
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
opposition to the motion for leave to amend focuses mainly on
the counterclaims. Even assuming the amendments to the answer
would be legally insufficient or inadequately supported by
evidence, there is no strong reason to deny Defendant leave
to make them. The legal sufficiency of these amendments can
be tested by pretrial motions if necessary. See Netbula,
LLC v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal.,
2003) (“Ordinarily, courts will defer consideration of
challenges to the merits of a proposed amended pleading until
after leave to amend is granted and the amended pleading is
filed.”). And amendments to the answer would not need
to be supported by additional discovery.
counterclaims present a more difficult question. Undue delay
is clearly a factor here. Defendant did not undertake
discovery as early or as vigorously as it could have. As a
result, it only learned of its new potential counterclaims
when it deposed Plaintiff near the end of the discovery
period. And even then, it waited until the discovery deadline
had passed to seek both additional discovery and leave to
amend. Had it been diligent, it could have discovered the
factual basis for its counterclaims much earlier.
Zivkovic v. S. Calif. Edison Co., 302 F.3d 1080
(9th Cir. 2002), the Ninth Circuit reviewed a
district court's denial of a plaintiff's leave to add
two causes of action. In that case, the plaintiff filed a
motion for leave to amend only “several days before the
discovery cut-off, ” and less than three months before
the commencement of trial. Id. at 1087. While no
trial date has been set in ...