Mendez v. C-Two Group, Inc.

Filing 40

ORDER by Judge Edward M. Chen Granting 39 Plaintiff's Motion for Leave to File a Second Amended Complaint. (emcsec, COURT STAFF) (Filed on 6/10/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMIE MENDEZ,

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Plaintiff,
v.

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For the Northern District of California

United States District Court

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No. C-13-5914 EMC

C-TWO GROUP, INC., et al.,

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ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO FILE A
SECOND AMENDED COMPLAINT

Defendants.
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(Docket No. 39)
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Plaintiff Jamie Mendez has filed a class action asserting a claim pursuant to the Telephone

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Consumer Protection Act (“TCPA”). See 47 U.S.C. § 227. The Court previously dismissed one of

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the defendants sued (mobileStorm, Inc.), thus leaving C-Two Group, Inc. as the only named

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defendant. See Docket No. 36. Ms. Mendez now moves for leave to file a second amended

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complaint. More specifically, Ms. Mendez asks to add a new defendant to the case, C&L

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Associates. C-Two has not opposed Ms. Mendez’s motion.

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The Court hereby VACATES the hearing on Ms. Mendez’s motion and further GRANTS

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the motion. Under Federal Rule of Civil Procedure 15, a “court should freely give leave [to amend]

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when justice so requires.” Fed. R. Civ. P. 15(a)(2). In general, “[f]ive factors are taken into account

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to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the

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opposing party, futility of amendment, and whether the plaintiff has previously amended the

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complaint.” Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). These factors weigh in favor

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of amendment in the case at hand. For example, Ms. Mendez’s proposed amendment does not

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appear to have been made in bad faith. C-Two only recently identified C&L as the owner of the

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Infusion Lounge, whose services were promoted in the text message that Ms. Mendez claims was

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not solicited and to which she did not consent. Also, Ms. Mendez has not unduly delayed in seeking

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the amendment. Although Ms. Mendez has previously amended her complaint, there is no

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indication that the proposed amendment would unfairly prejudice C-Two or even C&L. Finally, at

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this juncture in the proceedings, there is nothing to suggest that the proposed amendment would be

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futile.1

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Accordingly, Ms. Mendez’s motion is granted. Within a week of the date of this order, Ms.

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Mendez shall file Exhibit A of the Littlefield declaration as her second amended complaint; she must

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also serve a copy of the second amended complaint on C&L by the same date.

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This order disposes of Docket No. 39.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: June 10, 2014

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_________________________
EDWARD M. CHEN
United States District Judge

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However, nothing in this order should be construed as barring C&L from making any
motion to dismiss the claim asserted against it, whether pursuant to Federal Rule of Civil Procedure
12(b)(6) or another rule.

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