Monroe et al v. Gagan et al

Filing 32

ORDER granting Plas' 19 Motion to Amend Complaint. The Clerk is directed to file Plas Second Amended Complaint (doc.#22) previously lodged with the court. Signed by Judge Robert C Broomfield on 3/2/09.(KMG)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

James A. Monroe and Kimberly M. Pirtle, Plaintiffs,

) ) ) ) vs. ) ) James L. Gagan, Jane Doe ) Gagan, Ross Miljenovich, ) John Does I through X, and ) Jane Does I through X, ) ) Defendants ) ______________________________) Ross Miljenovich, ) ) Defendant) Cross-Claimant ) ) ) vs. ) ) James L. Gagan and Jane Doe ) Gagan, John and Jane Does 1 ) through 10 and 11 through 20, ) XYZ Corporations 1 through 10,) ABC Partnerships 1 through 10,) and Black and White ) Unincorporated Associations 1 ) through 10, ) ) Cross-Defendants )

No. 2:08-CV-0018-PHX-RCB ORDER

Currently pending before the court is a Motion for Leave to

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Amend by plaintiffs James A. Monroe and Kimberly Monroe Clark (doc. 19). Background The court assumes familiarity with the protracted and rather tortured procedural history of this action. A few aspects of that

history are directly germane to the present motion however. Plaintiffs sought to amend their complaint in Arizona Superior Court, Maricopa County, because it had "come to th[eir] attention . . . that Defendant Miljenovic [sic] was directly involved in the [alleged] wrongful eviction of Plaintiffs." 2. Id., exh. 2 thereto at

That amendment was proper, according to plaintiffs, because Id., exh. 2

"[w]rongful eviction is . . . actionable" in Arizona. thereto at 2.

Before that motion was resolved, however, defendants

removed that state court action to this federal district court. Plaintiffs now perfunctorily assert that they should be allowed to amend their complaint as to Ross Miljenovich because "[n]one of the reasons articulated by the U.S. Supreme court in Foman v. Davis [371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 22 (1962)] are present here." Id. at 4. The defendants did not file

responses to this motion, although the time to do so has long since passed. In fact, although obviously the court has not yet granted

this motion to amend, Mr. Miljenovich filed a "Second Amended Answer to the Second Amended Complaint filed by" plaintiffs. Miljenovich Ans. (doc. 24) at 2. Mr. Miljenovich filed that answer

within three weeks of plaintiffs filing their motion to amend and lodging their proposed second amended complaint. Discussion Pursuant to LRCiv 7.2(I) defendants' failure to file an -2-

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answering memorandum may be deemed consent to granting this motion. In its discretion, however, the court will briefly analyze the merits of this motion. See LRCiv 7.2(I) (emphasis added) ("[N]on-

compliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily.") Rule 15(a) provides that a party has the right to amend its "pleading once as a matter of course at any time before a responsive pleading is served." added). Fed. R. Civ. P. 15(a) (emphasis

Shortly after removal, plaintiffs filed an amended Therefore, in accordance with Fed. R.

complaint (docs. 4 and 5).

Civ. P. 15(a)(2), plaintiffs may amend their complaint again "only with the opposing party's written consent or the court's leave." Defendants have not given their written consent, so the court must decide whether to allow plaintiffs to amend. Rule 15(a)(2) also provides that courts "should freely grant leave [to amend] when justice so requires." 15(a)(2). Fed. R. Civ. P.

According to the Ninth Circuit, "[t]his policy is to be Eminence Capital, LLC v. Aspeon,

applied with extreme liberality."

Inc., 316 F.3d 1048, 1051 (internal quotation marks and citations omitted). In deciding whether to grant leave to amend, the Supreme

Court has instructed: In the absence of any apparent or declared reason ­ 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. ­ the leave should, as the rules require, be `freely given.' Id. at 182, 83 S.Ct. 227. weight[]" however. "Not all of these factors merit equal

Eminence Capital, 316 F.3d at 1052. -3-

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"[C]onsideration of prejudice to the opposing party . . . carries the greatest weight." Id. (citation omitted). Moreover, "[a]bsent

prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." omitted). Considering all of the Foman factors, the court finds that plaintiffs' motion for leave to amend should be granted. previously mentioned, no opposition was filed. As Id. (emphasis in original) (citation

Presumably by their

silence, defendants are conceding that there is no prejudice in allowing amendment here; and the court can conceive of none. is also no evidence of bad faith or undue delay. There

It appears that

this motion to amend is nearly identical to the one which plaintiffs filed in state court prior to removal. Additionally,

plaintiffs are seeking this amendment because they have "discovered" evidence which they believe supports a cause of action for wrongful eviction against Mr. Miljenovich. 3. Mot. (doc. 19) at

Thus, adopting the Ninth Circuit's "presumption" of granting

leave in such circumstances, the court hereby GRANTS plaintiffs' motion to amend. See Eminence Capital, 316 F.3d at 1052.

Accordingly, IT IS ORDERED that the "Motion for Leave to Amend Complaint" filed by plaintiffs James A. Monroe and Kimberly Monroe Clark (doc. 19) is GRANTED. The Clerk of the Court is directed to

file plaintiffs Second Amended Complaint (doc. 22) previously ...

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lodged with the court. DATED this 2nd day of March, 2009.

Copies to counsel of record

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