Feezor v. PNS Stores, Inc.

Filing 16

ORDER signed by District Judge Kimberly J. Mueller on 4/29/2011 GRANTING plaintiff's 11 Motion to Amend Complaint. Clerk directed to file 11 Exhibit A of Motion as First Amended Complaint. Defendant shall file an Answer w/in 14 days of being served this Order. (Marciel, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LARY FEEZOR, Plaintiff, 11 vs. 12 13 No. CIV S-10-2457 KJM-KJN PNS STORES, INC., d/b/a Big Lots #04310, Defendant. 14 ORDER / 15 This matter comes before the court upon plaintiff’s motion to amend the 16 17 complaint, filed on March 17, 2011. (ECF 11.) No opposition to this motion was filed, and 18 defense counsel confirmed there is no opposition at the April 27, 2011 initial scheduling 19 conference for this matter. For the following reasons, and there being no timely opposition filed, 20 plaintiff’s motion to amend is hereby GRANTED. 21 I. PROCEDURAL HISTORY Plaintiff filed his complaint in this court on September 13, 2010. (ECF 1.) 22 23 Defendant filed its answer on November 5, 2010. (ECF 6.) 24 Plaintiff filed the present motion to amend the complaint on March 17, 2011 (ECF 11), in 25 light of a recent Ninth Circuit decision, Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939 (9th 26 Cir. 2011). 1 1 II. 2 ANALYSIS Federal Rule of Civil Procedure 15(a)(2) states “[t]he court should freely give 3 leave [to amend its pleading] when justice so requires” and the Ninth Circuit has “stressed Rule 4 15’s policy of favoring amendments.” Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 5 1160 (9th Cir. 1989). “In exercising its discretion [regarding granting or denying leave to 6 amend] ‘a court must be guided by the underlying purpose of Rule 15 -- to facilitate decision on 7 the merits rather than on the pleadings or technicalities.’” DCD Programs, Ltd. v. Leighton, 833 8 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 9 1981)). However, “the liberality in granting leave to amend is subject to several limitations. 10 Leave need not be granted where the amendment of the complaint would cause the opposing 11 party undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue 12 delay.” Ascon Properties, 866 F.2d at 1160 (internal citations omitted). In addition, a court 13 should look to whether the plaintiff has previously amended the complaint, as “the district 14 court’s discretion is especially broad ‘where the court has already given a plaintiff one or more 15 opportunities to amend [its] complaint.’” Id. at 1161 (quoting Leighton, 833 F.2d at 186 n.3). 16 Thus, leave to amend is rightly granted here, where the amendment will not cause 17 defendant undue prejudice, is not sought in bad faith, is not futile, and does not create undue 18 delay. Moreover, this amendment to the complaint is plaintiff’s first. 19 II. 20 CONCLUSION For the foregoing reasons, plaintiff’s motion to amend the complaint is 21 GRANTED. The Clerk is DIRECTED to file Exhibit A of Docket Number 11 as plaintiff’s first 22 amended complaint. Defendant shall file an answer within fourteen days of being served this 23 order. 24 25 IT IS SO ORDERED. DATED: April 29, 2011. UNITED STATES DISTRICT JUDGE 26 2

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