United States District Court, S.D. California
ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO
FILE AMENDED COMPLAINT, [ECF No. 28]
Cynthia Bashant United States District Judge
case is one of nine cases in a consolidated matter.
(See 17-cv-2433-BAS-JLB, ECF No. 19 (consolidation
order).) Plaintiffs allege that in September 2017, they were
traveling in an Assault Amphibious Vehicle
(“AAV”) at Camp Pendleton. The AAV came into
contact with a gas line, resulting in an explosion and fire,
which injured Plaintiffs. Plaintiffs allege this incident
occurred because the gas line was not in compliance with the
Camp Pendleton Requirements, and had the line been in
compliance, the vehicle would have not come into contact with
the line. (17-cv-2433, ECF No. 1.) San Diego Gas &
Electric Co. (“SDG&E”) is the only named
Defendant in Plaintiffs Alires' complaint. (18-cv-1390,
ECF No. 1.) Southern California Gas Company is also named as
a Defendant in other cases in this consolidated action.
Marco and Leah Alires moves for leave to file an amended
complaint. (“Mot., ” ECF No. 28.) SDG&E
opposes the motion. (“Opp'n, ” ECF No. 29.)
Plaintiffs did not file a reply in support of their motion.
The Court finds resolution of this matter is suitable without
the need for oral argument. See Civ. L.R. 7.1(d)(1).
For the reasons discussed below, the Court
GRANTS Plaintiffs' Motion.
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 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).
operative complaint alleges that SDG&E was the contractor
responsible for the design, installation, maintenance,
repair, and operation of the gas systems at Camp Pendleton.
(ECF No. 1, at ¶ 10.) Plaintiffs seek to add three new
Defendants whom he states he previously identified as Doe
Defendants: Sempra Energy, Southern California Gas Company,
and San Diego Pipeline Company. (Mot. at
2.) Plaintiffs allege that all Defendants
transport, distribute, and sell natural gas and that the
subject gas line at Camp Pendleton may have been
subcontracted by one of the Defendants. (See ECF No.
28-2 (proposed amended complaint).)
states they received documents through discovery on August
26, 2019 that led them to request leave to add these
Defendants. (Id. at 4.) Plaintiffs provide no more
detail as to what the documents are or what information they
contain. Plaintiffs argue SDG&E will not be prejudiced by
the amendment because the amended complaint makes no changes
to the claims against SDG&E. Plaintiffs also state the
new Defendants will not be prejudiced because the amendment
is made “within the two year statute of
limitations” period. (Id.)
primary argument in its opposition is that the amendment is
futile. “Futility of amendment can, by itself, justify
the denial of a motion for leave to amend.” Bonin
v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995); see
Miller v. RykoffSexton, Inc., 845 F.2d 209, 214 (9th
Cir. 1988) (“A motion for leave to amend may be denied
if it appears to be futile or legally insufficient.”).
A proposed amendment is “futile if no set of facts can
be proved under the amendment to the pleadings that would
constitute a valid and sufficient claim or defense.”
Miller, 845 F.2d at 214. “Importantly, in
deciding whether a claim is adequately pled, the court may
not consider allegations or documents outside of the
pleadings or exhibits attached to the complaint.”
L.A. Gem & Jewelry Design, Inc. v. NJS.COM, LLC,
No. CV1702747ABJEMX, 2018 WL 6131185, at *2 (C.D. Cal. Mar.
5, 2018) (citing Outdoor Media Grp., Inc., v. City of
Beaumont, 506 F.3d 895, 899 (9th Cir. 2007)); see
also Robillard v. Opal Labs, Inc., 337 F.Supp.3d 962,
969 (D. Or. 2018) (holding that in evaluating a motion for
leave to amend, the court may only consider allegations in
the proposed amended complaint, documents incorporated by
reference into the complaint, and documents appropriate for
attached five exhibits to its opposition and points to each
as evidence that the proposed new Defendants had no
connection to or involvement with the subject gas line.
SDG&E does not argue why the Court can or should consider
these documents in evaluating Plaintiffs' motion. The
documents are not referenced in the complaint, and SDG&E
does not point out any reason why the documents are subject
to judicial notice. Therefore, the Court declines to consider
the documents at this stage.
point in the case, the Court cannot say with certainty that
Plaintiffs will not be able to offer any facts supporting a
valid claim against the new Defendants. Plaintiffs allege all
Defendants transport, distribute, and sell natural gas. Even
if it was undisputed that the government owns the subject gas
line, as SDG&E alleges, it is possible that one or more
of the energy companies still had some involvement or ...