Kelleher v. Kelleher et al

Filing 117

ORDER by Judge Maria-Elena James granting 107 Motion for Leave to File Third Amended Complaint. Plaintiff shall efile the amended complaint by 6/10/2015. (cdnS, COURT STAFF) (Filed on 6/9/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AMBER KELLEHER,

Case No. 13-cv-05450-MEJ

Plaintiff,
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ORDER GRANTING MOTION FOR
LEAVE TO FILE THIRD AMENDED
COMPLAINT

v.
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JOHN E. KELLEHER,

Re: Dkt. No. 107

Defendant.

United States District Court
Northern District of California

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Pending before the Court is Plaintiff Amber Kelleher’s Motion for Leave to File Third

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Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a). Dkt. No. 107. Plaintiff

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seeks to make the following changes: (1) drop her claims against Defendant John E. Kelleher in

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relation to fraudulent transfers of equity in three of the four companies previously identified by

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Plaintiff; (2) drop three of her previously seven claims against Defendant; and (3) add a new

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factual allegation, which is that on or about July 1, 2011, Defendant liquidated certain shares that

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he received from the debtor for $433,000. Defendant John E. Kelleher has not filed an opposition.

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The Court finds this matter suitable for disposition without oral argument and VACATES the July

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2, 2015 hearing. See Fed. R. Civ. P. 78(b); Civil L.R. 7-1(b).

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Federal Rule of Civil Procedure 15 provides that a party may amend its pleading once as a

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matter of course within (1) 21 days after serving the pleading or (2) 21 days after the earlier of

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service of a responsive pleading or service of a Rule 12(b) motion. Fed. R. Civ. P. 15(a)(1).

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Outside of this timeframe, “a party may amend its pleading only with the opposing party’s written

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consent or the court’s leave,” though the court “should freely give leave when justice so requires.”

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Fed. R. Civ. P. 15(a)(2). “Although the rule should be interpreted with ‘extreme liberality,’ leave

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to amend is not to be granted automatically.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387

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(9th Cir. 1990) (citation omitted). A court considers five factors in determining whether to grant

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leave to amend: “(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of

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amendment; and (5) whether plaintiff has previously amended his complaint.” In re Western

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States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013) (quoting Allen v.

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City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990)). “Prejudice to the opposing party is the

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most important factor.” Jackson, 902 F.2d at 1387.

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Here, given the largely administrative nature of Plaintiff’s amendments, and the fact that

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Defendant has set forth no opposition to Plaintiff’s motion, the Court finds good cause for leave to

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amend. There is no evidence of bad faith or undue delay in seeking to amend. Further, “[t]he
party opposing amendment bears the burden of showing prejudice,” see DCD Programs, Ltd. v.

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United States District Court
Northern District of California

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Leighton, 833 F.2d 183, 187 (9th Cir. 1987), and Defendant has set forth no showing whatsoever.

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Further, although Plaintiff has previously amended her complaint in this case, there is no issue

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regarding futility as Plaintiff’s proposed amendments actually drop rather than add claims.

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Accordingly, the Court GRANTS Plaintiff’s Motion to Amend. Plaintiff shall efile the
Third Amended Complaint by June 10, 2015. No chambers copy is required.
IT IS SO ORDERED.

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Dated: June 9, 2015
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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