Gradillas et al v. Lincoln General Insurance Company et al

Filing 40

ORDER GRANTING MOTION TO AMEND COMPLAINT AND VACATING MOTIONS TO DISMISS. Signed by Judge Charles R. Breyer on 9/24/2012. (crblc1, COURT STAFF) (Filed on 9/24/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 12-03697 CRB

LILLIAN GRADILLAS ET AL.,

ORDER GRANTING MOTION TO
AMEND COMPLAINT AND
VACATING MOTIONS TO DISMISS

Plaintiffs,
v.
LINCOLN GENERAL INSURANCE CO.
ET AL.,
Defendants.

/

Plaintiffs in this case filed a complaint in San Francisco Superior Court on February
23, 2012 alleging breach of contract and breach of the covenant of good faith and fair dealing
against Lincoln General Insurance Company and Does 1 though 10. See Not. of Removal
(dkt. 1), Ex. 1 (Compl.). On April 17, 2012, Plaintiffs substituted Walshire Assurance
Company for Doe 2 and Kingsway Financial Services, Inc. for Doe 3. Pl’s Opp’n to Mots. to
Dismiss (dkt. 26) at 6. On July 13, 2012, Defendant Kingsway America, Inc. removed the
action to this Court. See Not. of Removal.
The parties dispute whether leave to amend is available to Plaintiffs as of right or must
be granted by this Court pursuant to Federal Rule of Civil Procedure 15. See Pls.’ Opp’n to
Mots. to Dismiss at 7. In their Opposition to the Motions to Dismiss, Plaintiffs ask that they
be allowed to immediately file their First Amended Complaint (FAC), Pls.’ Opp’n at 19, and
they have attached their proposed FAC. See Pls.’ Opp’n, Ex. A. Under Federal

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Rule of Civil Procedure 15(a)(2), “[t]he court should freely give leave when justice so

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requires.” Amendment should be granted when it will not cause the opposing party undue

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prejudice, is not sought in bad faith, and is not an exercise in futility. DCD Programs, Ltd. v.

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Leighton, 833 F.2d 183, 186 (9th Cir. 1987). The Court has carefully reviewed the parties’

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papers, including Defendants’ contention that they will be prejudiced by amendment.

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See Reply re Defendant Kingway’s Motion to Dismiss (dkt. 27) at 4-5; Reply re Defendant

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Walshire’s Mot. to Dismiss (dkt. 28) at 6. The Court finds that there is no reason to deny

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amendment at this early stage of the litigation.

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Accordingly, this Court construes Plaintiffs’ Opposition as a request for leave to

United States District Court
For the Northern District of California

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amend, and GRANTS that request. The FAC, attached to the Plaintiffs’ Opposition as

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Exhibit A, is the operative complaint in this case.

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Defendants’ Motions to Dismiss (dkts. 6 and 9), calendared for September 14, 2012,
are hereby VACATED.
IT IS SO ORDERED.

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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: September 24, 2012

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G:\CRBALL\2012\3697\order re amending.wpd

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