United States of America v. Estate of Amir Zavieh, a/k/a Allen Zavieh, Deceased et al

Filing 29

ORDER Granting 24 Motion to File Second Amended Complaint. Signed by Judge Kandis A. Westmore on 11/8/2017. (kawlc2, COURT STAFF) (Filed on 11/8/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 UNITED STATES OF AMERICA, Plaintiff, 8 9 10 United States District Court Northern District of California 11 ORDER GRANTING MOTION TO FILE SECOND AMENDED COMPLAINT v. ESTATE OF AMIR ZAVIEH, A/K/A ALLEN ZAVIEH, DECEASED, et al., Re: Dkt. No. 24 Defendants. 12 13 Case No. 17-cv-03286-KAW On June 7, 2017, Plaintiff United States of America filed this action against Defendants 14 Estate of Amir Zavieh ("Decedent's Estate") and Lisa Zavieh Martin for the collection of an 15 outstanding civil penalty assessed against Amir Zavieh ("Decedent"). (Compl., Dkt. No. 1.) 16 Defendant Martin was named as a defendant in her capacity as the executor of Decedent's Estate. 17 (Compl. ¶ 2.) 18 On September 25, 2017, Plaintiff filed an ex parte motion for administrative relief to deem 19 service completed or, in the alternative, to reconsider the motion to extend time for service and to 20 allow service by publication. (Dkt. No. 18.) On October 6, 2017, the Court requested 21 supplemental briefing on Plaintiff's ex parte motion, including on why Plaintiff was not seeking to 22 substitute Defendant Martin for the Estate. (Dkt. No. 21.) The Court gave Plaintiff until October 23 18, 2017 to file a supplemental brief, and gave Defendant Martin until October 25, 2017 to file a 24 response. (Id. at 3.) Upon request by Defendant Martin, the Court extended Defendant's response 25 date to November 1, 2017. (Dkt. Nos. 22, 23.) 26 On October 18, 2017, Plaintiff filed its supplemental brief, stating that it "agrees that the 27 proper defendant for the United States' claims against the Estate of Amir Zavieh, a/k/a Allen 28 Zavieh, deceased, is Lisa Zavieh Martin, in her capacity as the distributee of the Estate." (Dkt. 1 No. 24 at 1-2.) Plaintiff requested to withdraw the motion to deem service completed and that the 2 Court grant Plaintiff leave to file a second amended complaint naming Lisa Zavieh as a defendant 3 in her capacity as the Estate's distributee, in addition to being named in her individual capacity and 4 as a successor in interest. (Id. at 2.) The second amended complaint listed four causes of action: 5 (1) judgment for civil penalty; (2) successor-in-interest liability; (3) 31 U.S.C. § 3713(b) liability, 6 and (4) fraudulent transfer. (Dkt. No. 24-1 ¶¶ 27-58.) 7 On October 30, 2017, the Court found that Plaintiff had withdrawn the ex parte motion for 8 administrative relief to deem service completed and terminated the motion. (Dkt. No. 26 at 2.) 9 The Court also deemed Plaintiff's October 18, 2017 brief as a motion for leave to file the proposed amended complaint, and gave Defendant Martin until November 3, 2017 to stipulate to the filing 11 United States District Court Northern District of California 10 of the proposed amended complaint or to file an opposition. (Id.) 12 On November 3, 2017, Defendant Martin filed a response to Plaintiff's supplemental brief, 13 arguing that Defendant Martin could only be sued for fraudulent transfer, but not the remaining 14 causes of action. (Dkt. No. 28 at 1.) Defendant Martin, however, cited no legal authority in 15 support of her argument. 16 Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend a complaint should 17 be "freely given when justice so requires." Fed. R. Civ. P. 15(a)(2). "This policy is to be applied 18 with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 19 2003). The courts consider five factors when determining whether leave to amend should be 20 granted: "(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of 21 amendment[,] and (5) whether plaintiff has previously amended his complaint." Allen v. City of 22 Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). Not all factors carry equal weight. Eminence 23 Capital, LLC, 316 F.3d at 1052. Prejudice to the opposing party must be given the greatest 24 weight. Id. Absent prejudice, or a strong showing of bad faith, undue delay, or futility of 25 amendment, there exists a presumption under Rule 15(a) in favor of granting leave to amend. Id. 26 (citation omitted). 27 28 Here, it appears Defendant Martin is arguing that the proposed amendment is futile. Again, however, Defendant Martin cites no legal authority in support of her assertion that 2 1 Defendant Martin cannot be sued for the first three proposed causes of action. Absent any legal 2 authority, the Court cannot determine that the proposed amendment is in fact futile. This finding, 3 of course, does not preclude Defendant Martin from filing a motion to dismiss. Accordingly, the Court GRANTS Plaintiff's request for leave to file the proposed second 4 5 amended complaint. Plaintiff is directed to file its proposed second amended complaint, which 6 should be consistent with Exhibit A of the supplemental briefing, on the docket as a separate 7 entry. 8 9 IT IS SO ORDERED. Dated: November 8, 2017 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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