Pace et al v. Bonham et al

Filing 42

ORDER GRANTING MOTION TO FILE AMENDED COMPLAINT AND DISMISSING AS MOOT MOTION TO DISMISS ORIGINAL COMPLAINT 37 20 26 (Illston, Susan) (Filed on 4/30/2013)

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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 12-05610 SI

FELICE PACE, WILDERNESS WATCH,

ORDER GRANTING MOTION TO FILE
AMENDED COMPLAINT AND
DISMISSING AS MOOT MOTION TO
DISMISS ORIGINAL COMPLAINT

Plaintiffs,
v.
CHARLTON H. BONHAM, STAFFORD
LEHR, CALIFORNIA DEPARTMENT OF
FISH AND GAME,

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Defendants.

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On March 15, 2013 the Court heard oral argument on defendants’ motion to dismiss. Docket

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No. 20. After the argument, and while that motion was under consideration, plaintiffs filed a motion

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to amend. Docket No. 37.1 Plaintiffs seek to add additional factual allegations, including the allegation

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that “[m]ortality rates from the aerial stocking of fish often approach 50%, as a result of transport, the

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drop, or because these stocked fish do not feed or survive well after stocking.” Proposed Second

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Amended Complaint, Docket No. 37-1, ¶ 10.2

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The motion to amend is set for hearing on Thursday May 2, 2013. Pursuant to Civil Local
Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and hereby
VACATES the hearing.
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Defendants argue that plaintiffs’ motion is procedurally improper and should have been styled
as a motion for reconsideration or request to submit a supplemental brief. See Opposition to Motion to
Amend at 1-3. However, while at oral argument on defendants’ motion to dismiss the Court’s tentative
view was the motion to dismiss should be granted and the minute order following the argument noted
that the “[M]otion to dismiss is tentatively granted,” the Court had not yet issued its final ruling. The
Court, therefore, will consider the motion to amend on its merits.

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The Court finds that the motion to amend should be GRANTED and plaintiffs’ Second Amended

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Complaint can be filed. The Court cannot, at this early stage, determine that leave to amend would be

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futile, since “a proposed amendment is futile only if no set of facts can be proved under the amendment

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to the pleadings that would constitute a valid and sufficient claim or defense." Miller v. Rykoff-Sexton,

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Inc., 845 F.2d 209, 214 (9th Cir. 1988) (citing Baker v. Pacific Far East Lines, Inc., 451 F.Supp. 84, 89

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(N.D. Cal. 1978)). Given the new allegation regarding the mortality of the stocked fish, the Court finds

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that further proceedings and factual development will be required to determine whether at least some

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of the fish being stocked would fall within the definition of “biological materials” that are pollutants

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under Association to Protect Hammersley v. Taylor Resources (Hammersley), 299 F.3d 1007 (9th Cir.

United States District Court
For the Northern District of California

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2002).
Accordingly, the motion to file the Second Amended Complaint is GRANTED; accordingly, the
motion to dismiss the original complaint is MOOT.

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IT IS SO ORDERED.

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Dated: April 30, 2013

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SUSAN ILLSTON
United States District Judge

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