Bell-Sparrow v. Wiltz et al
Filing
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ORDER GRANTING PLAINTIFF'S MOTION TO AMEND; DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS; SETTING CASE MANAGEMENT CONFERENCE 15 21 (Illston, Susan) (Filed on 2/8/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ARLENE BELL-SPARROW,
No. C 12-02782 SI
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Plaintiff,
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United States District Court
For the Northern District of California
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v.
PAUL WILTZ, MONE’T INC., and WONDA
MCGOWAN
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Defendants.
ORDER GRANTING PLAINTIFF’S
MOTION TO AMEND; DENYING AS
MOOT DEFENDANT’S MOTION TO
DISMISS; SETTING CASE
MANAGEMENT CONFERENCE
/
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Pro se plaintiff Arlene Bell-Sparrow filed a complaint against defendants Paul Wiltz, Mone’t
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Inc., and Wonda McGowan on May 31, 2012, alleging breach of contract, fraud, negligent
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misrepresentation, deceptive business practices, and violating the covenant of good faith and fair
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dealing. Plaintiff has not served defendants Paul Wiltz or Mone’t Inc., but defendant Wonda McGowan
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has been served. Defendant McGowan, in answering the complaint, filed a motion to dismiss for failure
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to state a claim, which she incorrectly termed a motion for summary judgment. Dkt. 15. Plaintiff has
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opposed that motion and in addition, plaintiff has filed a motion to amend her complaint. Therefore,
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both defendant McGowan’s motion to dismiss and plaintiff’s motion to amend her complaint are now
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before the Court. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for
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resolution without oral argument and VACATES the hearing currently scheduled for February 15,
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2013.
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Federal Rule of Civil Procedure 15(a) provides that a party may amend after obtaining leave of
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the court, or by consent of the adverse party. Leave to amend is generally within the discretion of the
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district court. In re Daisy Sys. Corp., 97 F.3d 1171, 1175 (9th Cir. 1996). Rule 15 advises the court that
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“leave shall be freely given when justice so requires.” The case law advises that this policy is “to be
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applied with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.
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2003) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)).
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Despite this liberality, leave to amend should not be granted automatically. Jackson v. Bank of
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Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). A trial court should consider four factors when deciding
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whether to give leave to amend: “(1) bad faith on the part of the plaintiffs; (2) undue delay; (3)
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prejudice to the opposing party; and (4) futility of the proposed amendment.” Lockheed Martin Corp.
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v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999). However, the consideration of prejudice
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to the opposing party carries the greatest weight. Eminence Capital, LLC, 316 F.3d at 1052.
Defendant McGowan has not opposed plaintiff’s motion to amend her complaint. Defendant’s
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opposition was due on January 24, 2013, and defendant has not requested an extension or otherwise
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United States District Court
For the Northern District of California
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communicated with the Court. However, in defendant McGowan’s motion to dismiss, she argues that
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plaintiff fails to state a claim for breach of contract or the related fraud claims against her because
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McGowan was not a party to the contract at issue. Dkt. 15-1 at 4. Plaintiff’s opposition to the motion
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to dismiss merely restates the allegations in her initial complaint and does not address McGowan’s
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contention. See Dkt. 17. However, plaintiff’s motion to amend seeks to amend her complaint to clarify
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facts regarding defendant McGowan’s actions and how McGowan did act in concert with the other co-
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defendants, presumably to breach the contract at issue, and to commit fraud. Dkt. 21 at 1.
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Here the Court finds that the factors to be considered pursuant to Lockheed all counsel in favor
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19 amend her complaint. In addition, because plaintiff is amending her complaint, the Court DENIES AS
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A further Case Management Conference is set for March 29, 2013 at 3:00 p.m.
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IT IS SO ORDERED.
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25 Dated: February 8 , 2013
SUSAN ILLSTON
United States District Judge
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