General Employees Trust Fund and Board of Trustees of General Employees Trust Fund v. Hermes

Filing 48

Order by Magistrate Judge Nathanael M. Cousins granting 36 Motion for Leave to File a First Amended Petition. (nclc2, COURT STAFF) (Filed on 2/23/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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9 GENERAL EMPLOYEES TRUST FUND
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and BOARD OF TRUSTEES OF
GENERAL EMPLOYEES TRUST FUND,

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Petitioners,
v.

13 YUL HERMES, an individual,
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Case No. 14-cv-04054 NC
ORDER GRANTING MOTION
FOR LEAVE TO FILE A FIRST
AMENDED PETITION TO
CONFIRM ARBITRATION
AWARD
Re: Dkt. No. 36

Respondent.

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Pending before the Court is petitioners’ motion for leave to amend their petition to

17 confirm arbitration award to name an additional respondent. Dkt. No. 36. The Court finds
18 the motion suitable for resolution without oral argument, see Civ. L.R. 7-1(b), and
19 GRANTS the motion for the reasons set forth below.
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This is an action brought by petitioners General Employees Trust Fund and Board of

21 Trustees of General Employees Trust Fund to enforce an arbitration award against
22 respondent Yul Hermes on an alter ego theory. Dkt. No. 1. The original petition alleges
23 that American Empire Building Maintenance Corporation (“Employer”) has failed and
24 refused to comply with an arbitration award and is, therefore, in breach of collective
25 bargaining agreements. Id. ¶¶ 37-39. The petition alleges that, on February 3, 2014, the
26 Employer filed a Chapter 7 Bankruptcy petition. Id. ¶ 42. The bankruptcy case was closed
27 on March 7, 2014. Dkt. No. 36-2. Petitioners filed this lawsuit on September 5, 2014, to
28 confirm the arbitration award against respondent Yul Hermes, the President, Chief
Case No. 14-cv-04054 NC
ORDER GRANTING MOTION FOR
LEAVE TO AMEND

1 Executive Officer, Chief Financial Officer, and Director of the Employer, on an alter ego
2 theory of liability. Dkt. No. 1 ¶¶ 8, 44-57. The original petition did not seek to enforce the
3 arbitration award against the Employer. Id. ¶ 43. Petitioners now request leave of Court,
4 under Federal Rule of Civil Procedure 15(a), to file a first amended petition to confirm
5 arbitration award that will add the Employer, the party to the arbitration at issue, as an
6 additional respondent.
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The motion for leave to amend was originally filed on January 22, and subsequently

8 refiled on January 30. Dkt. Nos. 33, 36. The deadline to amend pleadings and add new
9 parties previously set by the Court is January 30, 2015. Dkt. No. 31. Respondent opposes
10 the motion primarily on the grounds that petitioners failed to seek the amendment within a
11 reasonable time and that respondent will be prejudiced if the amendment is allowed under
12 the current case schedule. Dkt. No. 43.
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Federal Rule of Civil Procedure 15(a) provides generally that leave to amend the

14 pleadings before trial should be given freely “when justice so requires.” Fed. R. Civ. P.
15 15(a)(2). “This policy is ‘to be applied with extreme liberality.’” Eminence Capital, LLC v.
16 Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citations omitted). Under this rule,
17 courts generally consider five factors when deciding whether to grant leave to amend: bad
18 faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the
19 plaintiff has previously amended the complaint. Johnson v. Buckley, 356 F.3d 1067, 1077
20 (9th Cir. 2004) (citation omitted). “Not all of the factors merit equal weight. . . . it is the
21 consideration of prejudice to the opposing party that carries the greatest weight.” Eminence
22 Capital, 316 F.3d at 1052 (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th
23 Cir. 1987)). “[D]elay, by itself, is insufficient to justify denial of leave to amend.” DCD
24 Programs, 833 F.2d 183 at 186 (citations omitted). Moreover, “[t]he party opposing
25 amendment bears the burden of showing prejudice.” Id. at 187.
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The Court finds that petitioners’ motion for leave to amend is timely. The Court

27 further finds that the proposed amendment is not futile, was not made in bad faith or after
28 undue delay, and will not cause defendant to suffer prejudice. Accordingly, the motion for
Case No. 14-cv-04054 NC
ORDER GRANTING MOTION FOR
LEAVE TO AMEND

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1 leave to amend is GRANTED.
Th Court wi hold a fu
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8 2015.
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IT IS SO OR
T
RDERED.
Date: Februa 23, 2015
ary
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____
__________
__________
____
Nath
hanael M. C
Cousins
Unit States M
ted
Magistrate J
Judge

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Case No. 14-cv-0405 NC
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ORDER GRANTING MOTION FOR
R
N
LEAVE TO AMEND
D

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