Reishus, et al. v. Almaraz, et al

Filing 49

ORDER granting Plaintiff's 42 Motion for Leave to File Second Amended Complaint; within 14 days of the filing of the order, Plaintiffs shall file their Amended Complaint (see order for further details). Signed by Magistrate Judge Lawrence O Anderson on 9/29/10.(REW)

Reishus, et al. v. Almaraz, et al

Doc. 49

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Oliver Reishus and Roxanne Brinker,) ) husband and wife, ) ) Plaintiffs, ) ) vs. ) Efran Almaraz and Alejandra Estrada,) individually as husband and wife, d/b/a EA) Trucking; Paulo Egusquiza and Jane Doe) Egusquiza, individually and as husband) and wife, d/b/a Best Tires Distributors;) ) Eduardo Merino, a single man, ) ) Defendants. _________________________________ ) ) Paulo Eguisquiza, individually, d/b/a Best) ) Tires Distributors, ) ) Cross-Claimant, ) ) vs. ) Efren Almaraz, a single man, d/b/a/ EA) ) Trucking, ) ) Cross-Defendant. )

No. CV-10-0760-PHX-LOA ORDER

This case comes before the Court on Plaintiffs' Motion for Leave to File Second Amended Complaint, filed on September 10, 2010. (Doc. 42) Defendants Efren Almaraz, d/b/a EA Trucking, and Paulo Eguisquiza, d/b/a Best Tires Distributors, responded, indicating they have no objection to Plaintiffs' Motion. (Docs. 45, 47) Following a May 24, 2010 Rule 16 conference, the Court issued its

Dockets.Justia.com

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scheduling order which includes, among others, a October 1, 2010 deadline for amending pleadings. (Doc. 18 at 4) In compliance with the scheduling order, Plaintiffs timely filed the pending Motion because Defendant Efren Almaraz has "advised Plaintiffs that Jane Doe Almaraz's true name is Alejandra Estrada[]" and Defendant Efren Almaraz' discovery responses indicate that "Eduardo Merino [w]as the driver of the semi tractor trailer, owned by EA Trucking, involved in the subject incident." (Doc. 42) Plaintiffs request leave to amend their Complaint to add as additional Defendants, Alejandra Estrada and Eduardo Merino. Federal Rule of Civil Procedure 15 provides that "[t]he court should freely give leave [to amend a pleading] when justice so requires." Fed.R.Civ.P. 15(a)(2). The Ninth Circuit has directed district courts to consider the presence of bad faith, undue delay, prejudice to the opposing party, and futility, "with all inferences in favor of granting the motion [to amend]." Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973). Once the deadline for amending pleadings established in a pretrial scheduling order passes, however, Federal Rule of Civil Procedure 16, which controls the modification of a district court's scheduling order, governs the amendment of pleadings. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1991). Rule 16 provides that "[a] schedule may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). Here, the liberal amendment standard of Fed.R.Civ.P. Rule 15(a), rather than the "good cause" standard of Fed. R.Civ.16, governs the proposed amendment because Plaintiffs filed the amendment motion within the scheduling order's deadline for amending pleadings. Because Plaintiffs' request to amend their Complaint was before the amendment deadline and because Defendants have no objection to the granting of the Motion, the Court will grant Plaintiffs' Plaintiffs' Motion for Leave to File Second Amended Complaint. In accordance with the foregoing, -2-

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IT IS ORDERED that Plaintiffs' Motion for Leave to File Second Amended Complaint, docket # 42, is GRANTED. IT IS FURTHER ORDERED that, consistent with LRCiv 15.1 and within fourteen (14) days of the filing of the order granting leave to amend, Plaintiffs shall file their Amended Complaint, which they submitted as Exhibit 1 in support of its Motion to Amend except it shall contain the double caption used in this order, and shall promptly serve Defendants Alejandra Estrada and Eduardo Merino pursuant to Rule 4, Fed.R.Civ.P., so as to not unduly delay this litigation. Absent a conflict of interest, counsel for Defendants shall consider waiving service of process for Alejandra Estrada or Eduardo Merino pursuant to Rule 4(d), Fed.R.Civ.P. See, Darulis v. Garate, 401 F.3d 1060, 1063-64 (9th Cir. 2005). IT IS FURTHER ORDERED that counsel and any party, if unrepresented, shall use the above double caption, number and initials on all further pleadings, briefings and other filings herein: to wit: CV-10-0760-PHX-LOA Dated this 29th day of September, 2010.

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