United States District Court, S.D. California
ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO
FILE FIRST AMENDED COMPLAINT [ECF NO. 35]
CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs Black Mountain Equities, Inc.
and Gemini Opportunities Fund, LP's Motion for Leave to
File First Amended Complaint. (“Mot., ” ECF No.
35.) No. opposition to the Motion has been
filed. The Court finds this Motion suitable for
determination on the papers and without oral argument. Civ.
L. R. 7.1(d)(1). For the reasons stated below, the Court
GRANTS the Motion.
filed a Complaint against Defendant Players Network, Inc. for
declaratory relief. Due to Defendant's repeated failure
to respond to the Complaint, 1 Plaintiffs twice requested
default judgment. (ECF Nos. 9, 17.) The Court denied 2 both
motions, preferring to proceed on the merits. Defendant filed
an answer, the parties attended an early neutral evaluation
conference, and Magistrate Judge Crawford issued a scheduling
order for this case. Plaintiffs then filed the present Motion
seeking leave to file a first amended complaint.
Federal Rule of Civil Procedure 15(a), a plaintiff may amend
his complaint once as a matter of course within specified
time limits. Fed.R.Civ.P. 15(a)(1). “In all other
cases, a party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when 11 justice so
requires.” Fed.R.Civ.P. 15(a)(2).
courts exercise broad discretion in deciding whether to allow
amendment, they have generally adopted a liberal policy.
See United States ex rel. Ehmcke Sheet Metal Works v.
Wausau Ins. Cos., 755 F.Supp. 906, 908 (E.D. Cal. 1991)
(citing Jordan v. Cnty. of Los Angeles, 669 F.2d
1311, 1324 (9th Cir.), rev'd on other grounds,
459 U.S. 810 (1982)). Accordingly, leave is
generally granted unless the court harbors concerns
“such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.” Foman v. Davis,
371 U.S. 178, 182 (1962). The non-moving party bears
the burden of showing why leave to amend should not be
granted. Genentech, Inc. v. Abbott Labs., 127 F.R.D.
529, 530-31 (N.D. Cal. 1989).
proposed amended complaint adds a new cause of action for
breach of contract. Plaintiffs allege the claim partially
arises from a transaction Defendant entered into with a third
party after Plaintiffs filed their original complaint. (Mot.
at 2.) In analyzing the above factors, Plaintiffs first point
to the lack of delay or bad faith in this Motion, as it was
filed on the deadline for motions for leave to amend and
partially stems from events that could not have been
referenced in the original Complaint. (See ECF No.
33, ¶ 2.) Further, this is the first amended complaint
filed in this case, so Plaintiffs have not had prior chances
to cure any deficiencies in the original Complaint. Because
Defendant has not responded to the Motion, it has not pointed
to any prejudice it would suffer if the Court permits the
amendment. And Plaintiffs point out that there are still five
months until the end of fact discovery, so Defendant will not
be prejudiced in its ability to conduct discovery on the new
claim. (Mot. at 3.) The Court also finds the amendment would
not be futile, especially considering that Defendant has
failed to respond and argue futility.
foregoing reasons, the Court GRANTS
Plaintiffs' Motion. (ECF No. 35.) Plaintiffs
SHALL file the amended complaint attached to
their Motion on or before September 12, 2019.
IS SO ORDERED.