United States District Court, S.D. California
ORDER GRANTING LEAVE TO AMEND THE SHORT FORM
COMPLAINT ECF NO. 43.
Gonzalo P. Curiel United States District Judge
Belinda Vigil and her husband, Juan Vigil, seek leave from
the Court to amend their short form complaint to include the
Aris-Transobturator Sling System (the “Aris
Sling”) as a product at issue. Defendant Coloplast
Corporation opposes the amendment. Plaintiffs' motion
thus presents two questions for the Court: (1) whether a
two-and-a-half-year-old amendment to the complaint that is
unlikely to trigger much more discovery is unfairly
prejudicial to the Defendant, and (b) whether Plaintiffs'
proposed amendment would futilely raise time-barred claims.
The Court answers both questions in the negative, and thus
GRANTS Plaintiff's request to amend the
October 2, 2015, Plaintiffs filed suit in the Southern
District of West Virginia against Defendant alleging
seventeen causes of actions arising from Mrs. Vigil's use
of two allegedly defective products - Novasilk and Axis
Tutoplast. (ECF No. 1.) Plaintiffs' case was filed as
part of the pelvic mesh multidistrict litigation In Re:
Coloplast Corp., Pelvic Support System Products Liability
Litigation, MDL No. 2387.
September 12, 2019, Judge Joseph R. Goodwin, U.S. District
Judge for the Southern District of West Virginia, granted
Defendant's motion for summary judgment on ten causes of
action. (ECF No. 55.) At this time, six causes of action
remain: (A) Count IV - Strict Liability (Failure to Warn);
(B) Count V - Strict Liability (Defective Product); (C) Count
X - Discovery Rule, Rolling and Fraudulent Concealment; (D)
Count XII - Negligent Infliction of Emotional Distress; (E)
Count XV - Unjust Enrichment; and (F) Count XVII - Punitive
Damages. (ECF Nos. 1, 55.)
matter was transferred to the Southern District of California
on September 26, 2019, (ECF No. 66), and was assigned to this
Court on September 30, 2019. (ECF No. 69. On October 2, 2019,
Defendant Coloplast filed a notice of related cases citing
three other cases in this district. (ECF No. 70.) The Court
has elected not to consolidate this case with the other three
to transferring the case to this District, Plaintiffs filed a
request to amend the short form complaint to include a third
product, the Aris Sling, on May 20, 2019. (ECF Nos. 43, 45.)
On June 3, 2019, Defendant filed an opposition to that
motion. (ECF No. 54.) Plaintiffs did not file a reply. On
November 6, 2019, the Court set a hearing for Plaintiffs'
motion on January 10, 2020 at 1:30 p.m. (ECF No. 78.) The
Court now GRANTS Plaintiff's motion and
vacates the upcoming hearing.
Standard of Review
Rule of Civil Procedure (“Rule”) 15(a) provides
that, after an initial amendment as of right, a complaint may
only be amended “with the opposing party's written
consent or the court's leave.” Fed.R.Civ.P. 15(a).
Leave to amend should be “freely grant[ed] . . . when
justice so requires, ” Hurn v. Ret. Fund Tr. of
Plumbing, Heating & Piping Indus. of S. California,
648 F.2d 1252, 1254 (9th Cir. 1981) (quoting Fed.R.Civ.P.
15(a)), and this Rule should be interpreted and applied with
“extreme liberality.” Morongo Band of Mission
Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).
The “purpose” this standard is “‘to
facilitate a proper decision on the merits' . . . and not
to erect formal and burdensome impediments in the litigation
process.” Howey v. United States, 481 F.2d
1187, 1190 (9th Cir. 1973) (quoting Conley v.
Gibson, 355 U.S. 41, 48 (1957)); see Martinez v.
Newport Beach City, 125 F.3d 777, 785 (9th Cir. 1997).
ordinarily consider five factors when determining whether to
grant leave to amend under Rule 15: “(1) bad faith, (2)
undue delay, (3) prejudice to the opposing party, (4)
futility of amendment, ” and (5) whether the pleadings
have previously been amended. Allen v. City of Beverly
Hills, 911 F.2d 367, 373 (9th Cir. 1990); Foman v.
Davis, 371 U.S. 178, 182 (1962). A court need not
consider all the other factors, Atkins v. Astrue,
No. C 10-0180-PJH, 2011 WL 1335607, at *3 (N.D. Cal. Apr. 7,
2011), and the first factor, undue delay, is insufficient by
itself to justify denying leave to amend. Bowles v.
Reade, 198 F.3d 752, 758 (9th Cir. 1999). However, at a
minimum, a court should address any issues of prejudice as
this is the “touchstone of the inquiry under rule
15(a).” Eminence Capital, LLC v. Aspeon, Inc.,
316 F.3d 1048, 1052 (9th Cir. 2003).
party opposing amendment has the burden of showing that the
amendment is not warranted. DCD Programs, Ltd. v.
Leighton, 833 F.2d 183, 187 (9th Cir. 1987); see
also Richardson v. United States, 841 F.2d 993, 999 (9th
Cir.1988), and the Court must grant all inferences in favor
of allowing amendment. Griggs v. Pace Am. Group,
Inc., 170 F.3d 877, 880 (9th Cir. 1999).
threshold matter, the factors of undue delay, bad faith, and
prior amendments are determinative of Plaintiff's
request. Plaintiffs' request evinces a near-three-year
delay to amend the complaint, and their characterization of
this delay as “inadvertent” does not amount to
good cause. (ECF Nos. 43, 45.) However, “delay alone
provides an insufficient ground for denying leave to amend or
supplement.” Loehr v. Ventura Cty. Cmty. Coll.
Dist., 743 F.2d 1310, 1319-20 (9th Cir. 1984) (citation
omitted); see also Howey v. United States, 481 F.2d
1187, 1190-91 (9th Cir. 1973) (granting leave to amend five
years after the complaint was filed). In addition, Defendant
neither asserts that Plaintiff's request is made in bad
faith nor complains of past, repeated amendments. (ECF No.
54.) Consequently, a decision on Plaintiffs' motion turns
on prejudice and futility.
Defendant Would not be Unduly Prejudiced by ...