California Department of Water Resources v. Powerex Corporation

Filing 67

ORDER signed by Judge Garland E. Burrell Jr. on 10/25/05 VACATING 56 Judgment. The decretal portion of the order is amended from a dismissal of the complaint, and plaintiff is GRANTED leave to file the proposed amended complaint within 10 days. Case reopened.(Caspar, M)

California Department of Water Resources v. Powerex Corporation

Doc. 67

Case 2:05-cv-00518-GEB-PAN

Document 67

Filed 10/26/2005

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This matter was determined to be suitable for decision without oral argument. L.R. 78-230(h).
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CALIFORNIA DEPARTMENT OF WATER RESOURCES,

) ) ) Plaintiff, ) ) v. ) ) POWEREX CORP., a Canadian ) Corporation, dba POWEREX ENERGY ) CORP., and DOES 1 - 100, ) ) Defendants. ) )

02:05-cv-0518-GEB-PAN

ORDER*

This action was dismissed by an Order filed August 23, 2005. The same day a Judgment was entered by the Clerk's Office in favor of Defendant Powerex Corp. in accordance with the Order. Plaintiff moves

to set aside the Judgment, and for reconsideration and reversal of the August 23 Order. In the alternative, Plaintiff requests leave to file Defendant

the Proposed Amended Complaint attached to its motion.

opposes Plaintiff's motion, contending, inter alia, that Plaintiff cannot frame a complaint not preempted by the Federal Energy Regulatory Commission ("FERC"), and therefore amending the Judgment and granting leave to amend would be pointless.

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Although Plaintiff presents its Rule 59(e) and Rule 15(a) requests in the alternative, the two must be considered together.1 Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001)(stating that judgment must be reopened under Rule 59(e) before a court may entertain a motion to amend); Twohy v. First Nat'l Bank of Chicago, 758 F.2d 1185, 1196 (7th Cir. 1985)(stating that once a "court enters judgment upon a dismissal (as opposed to a mere dismissal of the complaint), the plaintiff may amend the complaint with `leave of court' after a motion under Rule 59(e) . . . has been made and the judgment has been set aside or vacated"). Plaintiff's requests under

Rules 59(e) and 15(a) are, in effect, a motion "to alter or amend the order of dismissal by changing the decretal provision from a dismissal of the action to a dismissal of the complaint, and by adding a provision granting leave to file an amended complaint . . . ." Walker

v. Bank of Am. Nat'l Trust & Sav. Ass'n, 268 F.2d 16, 20 (9th Cir. 1959). A Rule 59(e) motion to amend a judgment should be granted when Orange St. Partners v. Arnold, 179

the court committed "clear error." F.3d 656, 665 (9th Cir. 1999). Plaintiff's motion is granted.

For the reasons set forth below

The August 23 Order and Judgment dismissed Plaintiff's action because the action, as stated in the Complaint, was barred by "field preemption." Only after the action was dismissed did Plaintiff However, dismissal without

request leave to amend its Complaint.

leave to amend is not appropriate simply because a plaintiff did not seek leave to amend before dismissal. Doe v. United States, 58 F.3d

All references to "Rules" are to the Federal Rules of Civil Procedure unless otherwise indicated. 2

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494, 497 (9th Cir. 1995).

Rather, dismissal without leave to amend is

only appropriate when "it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316

F.3d 1048, 1052 (9th Cir. 2001). Plaintiff argues that its action could have been saved by amending the Complaint. the opportunity to amend. But dismissal of the action denied Plaintiff Hence, dismissal of Plaintiff's action

without a decision on whether an amendment could have saved the action was clear error. Therefore, the Judgment is vacated, the decretal

portion of the Order is amended from a dismissal of the action to a dismissal of the Complaint, and Plaintiff is granted leave to file the Proposed Amended Complaint within ten days of the date on which this Order is filed. IT IS SO ORDERED. DATED: October 25, 2005 /s/ Garland E. Burrell, Jr. GARLAND E. BURRELL, JR. United States District Judge

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