Bean et al v. Pearson Education Incorporated

Filing 84

ORDER granting 68 Plaintiffs' Motion for Leave to File Second Amended Complaint. Signed by Judge Paul G Rosenblatt on 8/16/2011.(TCA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tom Bean, et al.,
Plaintiffs,

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v.

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Pearson Education, Inc.,

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Defendant.

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CV 11-8030-PCT-PGR
ORDER

Before the Court is Plaintiffs’ Motion for Leave to File Second Amended Complaint.
(Doc. 68.) Defendant opposes the motion. (Doc. 81.)

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Plaintiffs filed a complaint on February 25, 2011, alleging copyright infringement and

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fraud. (Doc. 1.) The Court denied Plaintiffs’ motion for a preliminary injunction and granted

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in part Defendant’s motion to dismiss. (Docs. 29, 46.) Plaintiffs filed an amended complaint

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on June 14, 2011. (Doc. 56.) Defendant filed an answer on July 1. (Doc. 66.)

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Plaintiff’s seek leave to file a second amended complaint in order to correct “an

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unintentional and inadvertent mistake in the editing process” by which the following

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sentence, present in the original complaint, was omitted from the first amended complaint:

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“Upon information and belief, Pearson exceeded the permitted uses under the terms of the

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limited licenses granted by the Plaintiffs.” (Doc. 68; see Doc. 1, ¶ 16; Doc. 56.)

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Rule 15(a) of the Federal Rules of Civil Procedure provides that a plaintiff should be

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given leave to amend his complaint when justice so requires. Requests for leave are generally

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granted with “extreme liberality.” Moss v. United States Secret Serv., 572 F.3d 962, 972 (9th

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Cir. 2009). However, granting leave to amend “is subject to the qualification that the

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amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not

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futile.” Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 799 (9th Cir. 2001) (citation

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omitted).

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Defendant argues that Plaintiffs intentionally omitted the sentence in acknowledgment

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of the lack of support for their claim that Defendant committed infringement with respect to

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all of Plaintiffs’ licensed photographs. The Court rejects this argument as grounds for

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departing from the policy in favor of liberal amendment. Defendants have not shown bad

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faith or prejudice. Further, as set forth in the Court’s order denying in part Defendant’s

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motion to dismiss the copyright infringement claims, Defendant has not shown that it would

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be futile for Plaintiffs to amend their complaint to reinsert the sentence omitted from the first

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amended complaint.

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Defendant requests the Court to amend its scheduling order to accommodate the filing

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of a second amended complaint. In its scheduling order the Court extended the deadlines

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proposed by Defendant, including the discovery deadlines. Defendant has not shown that

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reinsertion of the omitted sentence will be so burdensome as to render those deadlines

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impracticable.

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Accordingly,

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IT IS HEREBY ORDERED that Plaintiffs’ Motion for Leave to File Second

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Amended Complaint (Doc. 68) is GRANTED.
DATED this 16th day of August, 2011.

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