Hopscotch Adoptions, Inc. et al v. Kachadurian

Filing 134

ORDER GRANTING 124 Motion to Amend the Complaint signed by Magistrate Judge Michael J. Seng on 5/15/2011. (Yu, L)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
HOPSCOTCH ADOPTIONS, et al.,

CASE NO.

1:09-cv-2101-MJS

9
Plaintiffs,

ORDER GRANTING MOTION TO FILE
FIRST AMENDED COMPLAINT

10
v.
11

(ECF No. 124)
VANESSA KACHADURIAN,

12
Defendant.
13
/
14
15

I.

INTRODUCTION; ISSUE

16

Plaintiffs Hopscotch Adoptions and Robin Sizemore (collectively “Plaintiffs”) initiated

17

this action with a December 2, 2009, complaint against Defendant Vanessa Kachadurian

18

asserting violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. §§ 1030 et

19

seq., and state law causes of action for defamation, negligent misrepresentation, false

20

light, tortious interference with contractual relations, and negligent interference with

21

prospective business advantage. (Compl., ECF No. 1.) The claims arose out of allegedly

22

false and inflammatory comments being made about Plaintiffs on various blogs and web

23

sites. (Id.)

24

Now, some seventeen months into the case, Plaintiffs seek leave to file a First

25

Amended Complaint which differs from the original in that it deletes the CFAA and

26

negligent misrepresentation cause of action and purportedly “recasts” the facts asserted

27

thereunder as new tortious interference with prospective advantage and invasion of privacy

28

causes of action. Defendant has no objection to deletion of the two causes of action, but

1

does otherwise oppose the proposed amendment.

2

II.

LAW AND ANALYSIS

3

The law governing amendment is not in dispute.

4

Under Federal Rules of Civil Procedure, Rule 15(a)(2), where, as here, a party's

5

time for amending a complaint as a matter of right has passed, the "party may amend its

6

pleading only with the opposing party's written consent or the court's leave. The court

7

should freely give leave when justice so requires." Bull v. City & County of San Francisco,

8

2010 U.S. Dist. LEXIS 93493 at *16-17 (N.D. Cal. Sept. 8, 2010). Indeed, since “... the

9

underlying purpose of Rule 15 [is] to facilitate decision on the merits, rather than on the

10

pleadings or technicalities...[its] policy of favoring amendments to pleadings should be

11

applied with 'extreme liberality.'" Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) In

12

deciding whether to grant leave, the court should consider the following factors: bad faith,

13

undue delay, repeated failure to correct deficiencies by prior amendment, prejudice to the

14

opposing party, and potential futility. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186

15

& n.3 (9th Cir. 1987). Delay alone, without prejudice, bad faith or futility will not justify

16

denial of a motion to amend. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999). The

17

non-moving party bears the burden of showing why leave to amend should not be granted.

18

Genetech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530-31 (N.D. Cal. 1989).

19

Defendant argues, in essence, that: allowing the proposed amendment would permit

20

Plaintiff to allege, improperly, either new facts which arose after the complaint was filed or

21

pre-existing facts which could have, and should have, been alleged in the initial complaint;

22

that Plaintiff has not shown reason for the delay in seeking leave to amend; and, that

23

Defendant has been prejudiced by the delay. (Opp'n, ECF No. 129.)

24

A motion to amend is not the place to resolve factual disputes; Defendant’s

25

objections to the factual basis for the amendment and/or the timing of the events giving rise

26

to the amendment will not be addressed here. The Court’s review of the pleadings alone

27

suggest that the original and proposed claims arise out of the same facts, events, and

28

transactions.
-2-

1

Defendant’s delay in seeking leave to amend is troubling and not well explained.

2

Plaintiff attributes the delay to Defendant.1 Without assessing blame, the Court sees no

3

sign that anything of great value has been accomplished in this case since its initiation

4

some seventeen months ago. It does not appear that discovery has begun in earnest, if

5

at all. More than three months remain in which to conduct discovery into facts and

6

allegations. That should be adequate. (If, despite diligence, it proves inadequate, the

7

Court may entertain an appropriate motion to extend discovery.) The Court is unable to find

8

that allowing the amendment would prejudice Defendant. Without prejudice, the Court is

9

unwilling to find that the delay alone is sufficient to deny a motion to amend where the

10

amendment appears to be based on the same set of facts, events and transactions giving

11

rise to the original complaint.

12

III.

13

ORDER
Accordingly, for the reasons set forth above, Plaintiff’s Motion to File First Amended

14

Complaint is GRANTED.

Plaintiff’s proposed Verified First Amended Complaint for

15

Injunctive Relief and Damages (ECF. No. 124, Ex. A.) may be filed at this time. Defendant,

16

if she wishes, may stand on her original answer to the First Amended Complaint; in she

17

choses to do so, the new allegations in the First Amended Complaint will be deemed

18

denied.

19
20

IT IS SO ORDERED.

21

Dated:
ci4d6

May 15, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28

1

Plaintiff does so in a m anner the Court finds to be lacking in professionalism , counterproductive
and unacceptable. (Reply, Section II.A, ECF No. 130.) The parties previously were adm onished about
such tactics. They w ill not be tolerated. The parties shall henceforth refrain from personal attacks or
characterization of their opponents and their opponents’ m otives and tactics. The Court is capable of
reaching its own conclusions as to the propriety of actions taken based on the objective facts presented; it
does not need, and will not accept, a party’s use of pejorative, or any, adverbs or adjectives to describe
those actions.

-3-