Smith v. Lowe's HIW, Inc.

Filing 13

ORDER signed by Magistrate Judge Allison Claire on 11/1/13 ORDERING that Plaintiff's MOTION to Amend the complaint 12 is GRANTED; Defendant's MOTION to Dismiss 6 and Motion to Strike 10 are DENIED as moot; The hearings on the Motions, currently set for 11/6/13, are VACATED from calendar. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRIEN EDWARD SMITH,

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Plaintiff,

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v.

No. 2:13-cv-1713 WBS AC PS

ORDER

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LOWE’S HIW, INC., ET AL.,

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Defendants.

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Following removal of this action on August 20, 2013 from the Amador County Superior

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Court, defendant Lowe’s HIW, Inc. (“Lowe’s”) filed a motion to dismiss and a motion to strike,

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both set for hearing on November 6, 2013. Rather than opposing these motions, plaintiff filed a

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motion to amend the complaint, also set for hearing on November 6, 2013.

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Federal Rule of Civil Procedure 15(a) instructs district courts that “leave [to amend] shall

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be freely given when justice so requires.” “In the absence of any apparent or declared reason—

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such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to

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cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by

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virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as

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the rules require, be freely given.” Schultz v. Wal–Mart Stores, Inc., 68 Fed. Appx. 130, 132 (9th

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Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962) (internal quotation marks

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omitted). “The Federal Rules reject the approach that pleading is a game of skill in which one
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misstep by counsel may be decisive to the outcome and accept the principle that the purpose of

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pleading is to facilitate a proper decision on the merits.” Id. (citation and internal quotation

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marks omitted). “The strong policy permitting amendment is to be applied with ‘extreme

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liberality.’” Id. (quoting Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.

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2003) (citation omitted in original). In accordance with this liberal policy and in the absence of

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impropriety, the court will grant plaintiff’s motion.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to amend the complaint (ECF No. 12) is granted;

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2. Defendant’s motion to dismiss (ECF No. 6) and motion to strike (ECF No. 10) are

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denied as moot; and
3. The hearings on these motions, currently set for November 6, 2013, are vacated from
calendar.
DATED: November 1, 2013

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