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