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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff,

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United States District Court
Northern District of California

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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.

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Case No. 17-cv-03286-KAW

On June 7, 2017, Plaintiff United States of America filed this action against Defendants

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Estate of Amir Zavieh ("Decedent's Estate") and Lisa Zavieh Martin for the collection of an

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outstanding civil penalty assessed against Amir Zavieh ("Decedent"). (Compl., Dkt. No. 1.)

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Defendant Martin was named as a defendant in her capacity as the executor of Decedent's Estate.

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(Compl. ¶ 2.)

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On September 25, 2017, Plaintiff filed an ex parte motion for administrative relief to deem

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service completed or, in the alternative, to reconsider the motion to extend time for service and to

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allow service by publication. (Dkt. No. 18.) On October 6, 2017, the Court requested

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supplemental briefing on Plaintiff's ex parte motion, including on why Plaintiff was not seeking to

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substitute Defendant Martin for the Estate. (Dkt. No. 21.) The Court gave Plaintiff until October

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18, 2017 to file a supplemental brief, and gave Defendant Martin until October 25, 2017 to file a

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response. (Id. at 3.) Upon request by Defendant Martin, the Court extended Defendant's response

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date to November 1, 2017. (Dkt. Nos. 22, 23.)

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On October 18, 2017, Plaintiff filed its supplemental brief, stating that it "agrees that the

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proper defendant for the United States' claims against the Estate of Amir Zavieh, a/k/a Allen

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Zavieh, deceased, is Lisa Zavieh Martin, in her capacity as the distributee of the Estate." (Dkt.

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No. 24 at 1-2.) Plaintiff requested to withdraw the motion to deem service completed and that the

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Court grant Plaintiff leave to file a second amended complaint naming Lisa Zavieh as a defendant

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in her capacity as the Estate's distributee, in addition to being named in her individual capacity and

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as a successor in interest. (Id. at 2.) The second amended complaint listed four causes of action:

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(1) judgment for civil penalty; (2) successor-in-interest liability; (3) 31 U.S.C. § 3713(b) liability,

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and (4) fraudulent transfer. (Dkt. No. 24-1 ¶¶ 27-58.)

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On October 30, 2017, the Court found that Plaintiff had withdrawn the ex parte motion for

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administrative relief to deem service completed and terminated the motion. (Dkt. No. 26 at 2.)

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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

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United States District Court
Northern District of California

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of the proposed amended complaint or to file an opposition. (Id.)

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On November 3, 2017, Defendant Martin filed a response to Plaintiff's supplemental brief,

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arguing that Defendant Martin could only be sued for fraudulent transfer, but not the remaining

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causes of action. (Dkt. No. 28 at 1.) Defendant Martin, however, cited no legal authority in

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support of her argument.

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Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend a complaint should

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be "freely given when justice so requires." Fed. R. Civ. P. 15(a)(2). "This policy is to be applied

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with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.

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2003). The courts consider five factors when determining whether leave to amend should be

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granted: "(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." Allen v. City of

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Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). Not all factors carry equal weight. Eminence

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Capital, LLC, 316 F.3d at 1052. Prejudice to the opposing party must be given the greatest

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weight. Id. Absent prejudice, or a strong showing of bad faith, undue delay, or futility of

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amendment, there exists a presumption under Rule 15(a) in favor of granting leave to amend. Id.

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(citation omitted).

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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
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Defendant Martin cannot be sued for the first three proposed causes of action. Absent any legal

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authority, the Court cannot determine that the proposed amendment is in fact futile. This finding,

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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

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amended complaint. Plaintiff is directed to file its proposed second amended complaint, which

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should be consistent with Exhibit A of the supplemental briefing, on the docket as a separate

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entry.

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IT IS SO ORDERED.
Dated: November 8, 2017

__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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