Moore v. Robinson Oil Corporation

Filing 24

Order by Magistrate Judge Howard R. Lloyd granting 21 plaintiff's motion for leave to file first amended complaint. 9/13/2011 hearing vacated. Plaintiff to forthwith file amended complaint as a separate docket entry. Defendant's response due within 7 days thereafter.(hrllc2, COURT STAFF) (Filed on 9/8/2011)

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1 2 *E-FILED 09-08-2011* 3 4 5 6 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 For the Northern District of California United States District Court 7 No. C10-01014 HRL RONALD MOORE, 12 ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT Plaintiff, v. 13 14 ROBINSON OIL CORPORATION dba ROTTEN ROBBIE #42, 15 Defendant. [Re: Docket No. 21] / 16 17 Plaintiff Ronald Moore sues for alleged violations of federal and state laws requiring 18 equal access for disabled persons. Following a September 2010 site inspection with Moore’s 19 access specialist, plaintiff provided a report of alleged barriers to access on the subject 20 property—including some that are not identified in the complaint. Moore now moves for leave 21 to file a First Amended Complaint to (1) include the additional barriers identified in the 22 inspection report and (2) add allegations with respect to his standing to bring suit, which he says 23 are required by Chapman v. Pier One Imports, Inc., 631 F.3d 939 (9th Cir. 2011). Defendant 24 Robinson Oil Corporation dba Rotten Robbie #42 opposes the motion. All parties have 25 expressly consented that all proceedings in this matter may be heard and finally adjudicated by 26 the undersigned. 28 U.S.C. § 636(c); FED. R. CIV. P. 73. The matter is deemed appropriate for 27 determination without oral argument. CIV. L.R. 7-1(b). Upon consideration of the moving and 28 responding papers, this court grants the motion. and provides that “[t]he court should freely give leave when justice so requires.” FED. R. CIV. 3 P. 15(a)(2). The decision whether to grant leave to amend under Rule 15(a) is committed to the 4 sound discretion of the trial court. See Waits v. Weller, 653 F.2d 1288, 1290 (9th Cir. 1981). 5 Leave need not be granted, however, where the amendment would cause the opposing party 6 undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue delay. 7 Foman v. Davis, 371 U.S. 178, 182 (1962). “Absent prejudice, or a strong showing of any of 8 the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting 9 leave to amend.” Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 10 Here, defendant does not say anything about the added standing allegations that plaintiff 11 For the Northern District of California Rule 15(a) of the Federal Rules of Civil Procedure governs motions for leave to amend 2 United States District Court 1 says are required by Chapman. Instead, defendant argues that it would be severely prejudiced if 12 plaintiff is permitted to now claim additional barriers to access. Fact discovery closes in about 13 one week, and the parties’ expert designations with reports are due by September 28, 2011. 14 Defendant contends that Moore is simply too late in seeking amendment and that the delay is 15 due to bad faith. However, if the court is inclined to permit the amendment, defendant requests 16 that all case management deadlines be extended and that the trial set for February 2012 be 17 continued to a later date. 18 There was a considerable delay in plaintiff’s request for amendment. As noted above, 19 the inspection report identifying the additional alleged barriers was generated nearly one year 20 ago. And, the Chapman decision plaintiff cites was issued over eight months ago. Plaintiff 21 might well have sought amendment much sooner. Nevertheless, the court does not find that the 22 delay was due to bad faith. Here, plaintiff says that, pending settlement discussions, he held off 23 on seeking amendment in order to avoid incurring additional litigation fees and costs. In any 24 event, while the amendment comes late in the fact discovery period, defendant has not 25 convincingly demonstrated any serious prejudice. Although the barriers identified in the 26 inspection report may not have been included in the complaint, defendant has known about 27 them for quite some time. Defendant was given a copy of the inspection report in October 28 2010. The court held an initial case management conference in March 2011 and set a case 2 1 schedule. And, in response to written discovery served by defendant in late June 2011, plaintiff 2 identified all of the alleged barriers to access, including those identified in the inspection report. 3 (Moore Reply Decl., Ex. A). This court is told that all that remains is to depose plaintiff and 4 that his deposition is set for September 16, 2011. On the record presented, the court does not 5 find that the amendment would be futile, and defendant makes no argument as to futility in any 6 event. 7 Based on the foregoing, plaintiff’s motion is granted. He shall forthwith file his First 8 Amended Complaint as a separate docket entry. Defendant’s response shall be filed within 7 9 days thereafter. FED. R. CIV. P. 15(a)(3). Defendant’s request to modify the current case management schedule is denied. 11 For the Northern District of California United States District Court 10 SO ORDERED. 12 Dated: September 8, 2011 13 HOWARD R. LLOYD 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 5:10-cv-01014-HRL Notice has been electronically mailed to: 2 Elizabeth Marie Pappy 3 Kenneth Randolph Moore 4 Tanya Eugene Moore,,, 5 6 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court’s CM/ECF program. 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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