Campbell v. Feld Entertainment, Inc et al

Filing 142

ORDER by Judge Lucy H. Koh denying (121) Motion to Amend/Correct in case 5:12-cv-04233-LHK; denying (46) Motion to Amend/Correct in case 5:13-cv-00233-LHK. (lhklc4, COURT STAFF) (Filed on 2/14/2014)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN JOSE DIVISION 11 SHANNON CAMPBELL, 12 Plaintiff, v. 13 14 FELD ENTERTAINMENT, INC., et al., Defendants. 15 16 MARK ENNIS, 17 Plaintiff, v. 18 19 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) FELD ENTERTAINMENT, INC., et al., Defendants. 20 21 Case Nos.: 12-CV-04233-LHK 13-CV-00233-LHK ORDER DENYING MOTION FOR LEAVE TO AMEND Plaintiffs Shannon Campbell and Mark Ennis (collectively, “Plaintiffs”) bring this motion 22 for leave to amend their Second Amended Consolidated Complaint (“SACC”) to substitute their 23 negligent supervision claim with a negligence claim (“Motion for Leave to Amend”). Having 24 considered the parties’ arguments, the relevant law, and the record in this case, the Court hereby 25 DENIES Plaintiffs’ Motion for Leave to Amend. 26 I. 27 28 BACKGROUND A. Plaintiffs’ Original Complaints, First Amended Complaints, and Second Amended Consolidated Complaint 1 Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK ORDER DENYING MOTION FOR LEAVE TO AMEND 1 On August 10, 2012, Plaintiff Shannon Campbell (“Campbell”) filed her original Complaint 2 asserting four causes of action, which did not include a claim for negligence or negligent 3 supervision. Campbell ECF No. 1. 1 On December 20, 2012, prior to any defendant filing a 4 response to Campbell’s original Complaint, Campbell filed her First Amended Complaint 5 (“FAC”), Campbell ECF No. 11, which asserted six causes of action, including negligent 6 supervision, but not including negligence. See id. On January 16, 2013, Defendant Feld 7 Entertainment, Inc. moved to dismiss Campbell’s FAC. Campbell ECF No. 26. Campbell filed an 8 opposition. Campbell ECF No. 42. Defendant Feld Entertainment, Inc. filed a reply. Campbell 9 ECF No. 47. United States District Court For the Northern District of California 10 On January 17, 2013, Plaintiff Mark Ennis (“Ennis”) filed his original Complaint asserting 11 six causes of action, including negligent supervision, but not including negligence. Ennis ECF No. 12 1. On April 16, 2013, Ennis filed his First Amended Complaint (“FAC”), which asserted the same 13 six causes of action in his original Complaint. Ennis ECF No. 8. On May 22, 2013, Defendants 14 Feld Entertainment, Inc., Mike Stuart (“Stuart”), and David Bailey (“Bailey”) (collectively, 15 “Defendants”) moved to dismiss Ennis’s FAC. Ennis ECF No. 13. Ennis filed an opposition. 16 Ennis ECF No. 16. Defendants filed a reply. Ennis ECF No. 17. 17 On June 18, 2013, pursuant to the parties’ agreement, the Court consolidated Campbell and 18 Ennis’s (collectively, “Plaintiffs”) cases for pre-trial purposes and ordered Plaintiffs to file a 19 Second Amended Consolidated Complaint. Campbell ECF Nos. 69 and 70. Accordingly, the 20 Court denied as moot Defendants’ prior motions to dismiss Campbell and Ennis’s FACs. 21 Campbell ECF No. 70 and Ennis ECF No. 45. On July 9, 2013, Plaintiffs filed a Second Amended 22 Consolidated Complaint. Campbell ECF No. 73 (“SACC”). The SACC alleged negligent 23 supervision, but did not allege negligence. See id. 24 On July 15, 2013, Plaintiffs moved for a preliminary injunction enjoining Defendants from 25 interfering with the free exercise of Plaintiffs’ rights to free speech, assembly, and access to public 26 27 28 1 Docket entries in Campbell v. Feld Entertainment, Inc. et al., Case No. 5:12-CV-04233-LHK, will be cited as “Campbell ECF.” Docket entries in Ennis v. Feld Entertainment, Inc. et al., Case No. 5:13-CV-00233-LHK, will be cited as “Ennis ECF.” 2 Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK ORDER DENYING MOTION FOR LEAVE TO AMEND 1 streets and walkways in multiple California cities in which Ringling scheduled circus events in 2 2013. Campbell ECF Nos. 74 and 77. On July 29, 2013, Defendants opposed the motion. 3 Campbell ECF No. 84. On August 5, 2013, Plaintiffs filed a reply. Campbell ECF No. 88. On 4 August 22, 2013, the Court denied Plaintiffs’ preliminary injunction request because Plaintiffs 5 failed to meet their burden of showing likelihood of success on the merits and a likelihood of future 6 irreparable harm. Campbell ECF No. 103. 7 On August 12, 2013, Defendants moved to dismiss and/or strike the SACC. Campbell ECF 8 No. 94. On August 30, 2013, Plaintiffs filed an opposition to Defendants’ motion. Campbell ECF 9 No. 107. On September 6, 2013, Defendants filed their reply. Campbell ECF No. 109. On United States District Court For the Northern District of California 10 October 4, 2013, the Court granted in part and denied in part Defendants’ motion to dismiss and/or 11 strike the SACC. Campbell ECF No. 120. 12 B. Plaintiffs’ Third Amended Consolidated Complaint 13 On September 9, 2013, Campbell moved to supplement the SACC with new factual 14 allegations regarding events arising in August 2013 and add a new defendant, Tripp Gorman, who 15 was an employee of Defendant Feld Entertainment, Inc. Campbell ECF No. 110. On September 16 12, 2013, the Court invited the parties to meet and confer regarding Campbell’s motion to 17 supplement and to attempt to reach a stipulation regarding the amendment. Campbell ECF No. 18 114. Pursuant to the Court’s order, the parties filed a Joint Status Report on September 13, 2013. 19 Campbell ECF No. 115 (“September 13, 2013 Joint Status Report”). According to the Joint Status 20 Report, the parties agreed that Plaintiffs are permitted to add the new allegations and new 21 defendant. Id. However, the parties also agreed that, “no new causes of action will be added.” Id. 22 On September 19, 2013, the Court held a case management conference. Campbell ECF No. 23 119. At that case management conference, Plaintiffs, for the first time, proposed substituting their 24 negligent supervision claim with a negligence claim. Decl. Todd Sorrell in Supp. Opp. (“Sorrell 25 Decl.”) Campbell ECF Nos. 125-1; Decl. Matthew A. Siroka in Supp. Mot. for Leave to Amend 26 (“Siroka Decl.”), Campbell ECF No. 127-1. Accordingly, the Court ordered: 27 28 No later than September 23, 2013, Plaintiffs shall provide to Defendants a copy of the proposed amended complaint with the negligence claim in lieu of the negligent supervision claim. No later than September 26, 2013, the parties shall file a joint status report 3 Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK ORDER DENYING MOTION FOR LEAVE TO AMEND indicating whether Defendants agree to Plaintiffs’ proposed substitution of the negligence claim for the negligent supervision claim. If Defendants do not agree to the substitution, the parties shall propose a procedure for how Plaintiffs will request leave from the Court regarding the proposed amendment of the complaint. 1 2 3 Campbell ECF No. 119 at 1. 4 On September 26, 2013, Defendants filed a status report indicating that, “no agreement on 5 the amendment has been reached and Defendants do not stipulate to new claims being added in 6 contravention of the agreement reflected in the Joint Status Report dated September 13, 2013.” 7 Campbell ECF No. 118. Defendants added that “the only acceptable amendments are those in 8 accordance with the Court’s not-yet-issued Order on the Motion to Dismiss and/or Strike, and 9 those that are specifically included in the Proposed Third Amended Complaint (Document 112-1) United States District Court For the Northern District of California 10 that are not contrary to the Court’s Order.” Id. 11 On September 27, 2013, Plaintiffs filed a separate status report. Ennis ECF No. 42. In their 12 status report, Plaintiffs requested that the Court allow Plaintiffs leave to amend their SACC to add 13 the negligence claim, in addition to any changes necessary to comply with the Court’s ruling on the 14 Motion to Dismiss and/or Strike. Id. at 2. 15 On October 4, 2013, the Court granted in part and denied in part Defendants’ motion to 16 dismiss Plaintiffs’ SACC. Campbell ECF No. 120. In particular, the Court denied as moot 17 Defendants’ motion to dismiss Plaintiffs’ negligent supervision claim in light of Plaintiffs’ 18 withdrawal of this claim. 2 Id. at 25. The Court also allowed Plaintiffs to amend the SACC in 19 compliance with the order and the parties’ agreement as set forth in the September 13, 2013 Joint 20 Status Report (Campbell ECF No. 115). Id. at 26. The Court, however, emphasized that Plaintiffs 21 22 23 24 25 26 27 28 2 In the Motion for Leave to Amend, Plaintiffs state that “withdrawal of their negligent supervision claim was conditioned on the inclusion of a negligence claim and, in light of Defendants’ refusal to stipulate to inclusion of the negligence claim, was not in fact withdrawn by Plaintiffs.” Mot. at 4 n. 4. However, at the beginning of the September 19, 2013 case management conference, the Court gave its tentative ruling on the Defendants’ motion to dismiss the SACC. Particularly, the Court stated its intent to grant Defendants’ motion to dismiss Plaintiffs’ negligent supervision claim with leave to amend. September 19, 2013 Case Management Conference (“Sept. 19, 2013 Tr.”) at 4:26. Plaintiffs’ counsel stated that Plaintiffs were “inclined to delete the negligent supervision claim and simply replace it, and it’s—I mean [negligence is] essentially already pled.” Id. at 47:8-10. Indeed, Plaintiffs admit that, “[i]n the course of litigating defendant’s motion to dismiss the [SACC], it became clear that it would be difficult to develop sufficient facts to sustain [Plaintiffs’] negligent supervision claim.” Reply at 2; Siroka Decl. ¶ 4. 4 Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK ORDER DENYING MOTION FOR LEAVE TO AMEND 1 shall not add any new causes of action. Id. Finally, acknowledging that Defendants do not agree 2 to Plaintiffs’ substitution of their negligent supervision claim with a negligence claim, the Court 3 ordered Plaintiffs to file a motion for leave to amend the complaint to add a negligence claim. Id. 4 Pursuant to the Court’s order, Plaintiffs filed a Third Amended Consolidated Complaint on October 21, 2013. Campbell ECF No. 124 (“TACC”). The TACC did not include negligent 6 supervision nor negligence as causes of action. See id. Pursuant to the parties’ agreement as set 7 forth in the September 13, 2013 Joint Status Report, the TACC included one new defendant, 8 Defendant Feld Entertainment, Inc. employee Tripp Gorman, and new factual allegations relating 9 to conduct that allegedly occurred in August 2013. See id. Subsequently, Defendants moved to 10 United States District Court For the Northern District of California 5 dismiss Plaintiffs’ TACC on November 4, 2013. Campbell ECF No. 126. Plaintiffs opposed the 11 motion on November 18, 2013. Campbell ECF No. 128. Defendants replied on November 25, 12 2013. Campbell ECF No. 129. The motion hearing is scheduled to be heard on March 20, 2014. 13 Campbell ECF No. 126. 14 On October 17, 2013, Plaintiffs filed a Motion for Leave to Amend their SACC to 15 substitute their negligent supervision claim with a negligence claim. Campbell ECF No. 121 16 (“Mot.”). On October 31, 2013, Defendants opposed the motion. Campbell ECF No. 125 17 (“Opp.”). On November 7, 2013, Plaintiffs filed a reply. Campbell ECF No. 127 (“Reply”). 18 II. 19 LEGAL STANDARD Under Federal Rule of Civil Procedure 15(a), a party may amend its complaint “once as a 20 matter of course at any time before a responsive pleading is served.” Fed. R. Civ. P. 15(a). 21 Thereafter, a party may amend only by leave of the court or by written consent of the adverse 22 party. Id. Rule 15(a), however, instructs that “leave shall be freely given when justice so 23 requires.” Id. See also Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 24 2003). 25 Leave to amend should be granted where there is no “undue delay, bad faith or dilatory 26 motive on the part of the movant, repeated failure to cure deficiencies by amendments previously 27 allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] 28 futility of the amendment [.]” See Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th 5 Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK ORDER DENYING MOTION FOR LEAVE TO AMEND 1 Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)); 2 Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009). 3 Ultimately, the grant or denial of an opportunity to amend is within the discretion of the 4 district court. Foman, 371 U.S. at 182 (“district court may properly deny leave to amend but 5 outright refusal to grant leave without any justifying reason is not an exercise of discretion”); 6 Eminence Capital, 316 F.3d at 1051-52 (underlying purpose of Rule 15 is to “facilitate decision on 7 the merits, rather than on the pleadings or technicalities”). The district court has particularly broad 8 discretion to deny leave to amend where plaintiff has previously amended the complaint. Allen v. 9 City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990); accord Sisseton-Wahpeton Sioux Tribe v. United States District Court For the Northern District of California 10 United States, 90 F.3d 351, 355 (9th Cir. 1996) (denying leave to amend complaint where the 11 plaintiff conceded that the proposed amendments are similar to the existing claims already asserted 12 in the second amended complaint). 13 III. 14 DISCUSSION Plaintiffs move for leave to amend their SACC and to file a Third Amended Consolidated 15 Complaint (“TACC”) that substitutes their negligent supervision claim in their SACC with a 16 negligence claim. Campbell ECF No. 121 (“Mot.”). Plaintiffs argue that leave to amend is 17 appropriate because the Ninth Circuit favors freely granting motions for leave to amend and 18 Defendants cannot meet their burden of showing undue delay, bad faith, prejudice or futility. Mot. 19 at 5-9. 20 As stated above, leave to amend should be granted where there is no “undue delay, bad faith 21 or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments 22 previously allowed, undue prejudice to the opposing party by virtue of allowance of the 23 amendment, [and] futility of the amendment [.]” See Leadsinger, Inc., 512 F.3d at 532. Although 24 delay alone does not justify denial of leave to amend, undue delay combined with prejudice may 25 justify denial of leave to amend. See, e.g., Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999). 26 For the reasons stated below, the Court finds undue delay by Plaintiffs and prejudice to 27 Defendants. As such, the Court need not reach the other leave to amend factors. Accordingly, the 28 Court DENIES Plaintiffs’ Motion for Leave to Amend. 6 Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK ORDER DENYING MOTION FOR LEAVE TO AMEND 1 A. Undue Delay in Amending Complaint to Assert Negligence Claim 2 Plaintiffs contend that “there is no undue delay here because Plaintiffs’ cause of action for 3 negligence introduces no new facts to the existing complaint.” Mot. at 6. Further, “[i]f there has 4 been any delay in Plaintiffs bringing their current motion, that delay was the result of the parties’ 5 and this Court’s deliberations and attempts to meet and confer around Defendants’ Motion to 6 Dismiss the Second Amended Complaint.” Id. In opposition, Defendants argue that Plaintiffs 7 have unduly delayed in amending their complaint to add a negligence claim. Opp. at 7-8. The 8 Court agrees with Defendants. Undue delay in filing an amended complaint occurs when “the moving party knew or 10 United States District Court For the Northern District of California 9 should have known the facts and theories raised by the amendment in the original pleading.” 11 AmerisourceBergen Cop. v. Dialysist West, Inc., 465 F.3d 946, 953 (9th Cir. 2006); see also Acri v. 12 International Ass’n of Machinists, 781 F.2d 1393, 1398 (9th Cir. 1986) (“[L]ate amendments to 13 assert new theories are not reviewed favorably when the facts and the theory have been known to 14 the party seeking amendment since the inception of the cause of action.”). Courts have held that an 15 eight-month delay between the time of obtaining a relevant fact and seeking a leave to amend is 16 unreasonable. See Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 799 (9th Cir. 1991) (citing Jackson v. 17 Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990)). 18 Here, Plaintiffs admit that the proposed negligence claim is not based on new facts. Mot. at 19 6. In fact, Plaintiffs concede that “[t]he negligence cause of action arises out of the same set of 20 facts and transactions that gave rise to Plaintiffs’ original complaint and which form the basis for 21 this action.” Mot. at 8. Plaintiffs even contend that the negligence claim is “essentially already 22 pled” in the SACC. See Sept. 19, 2013 Tr. at 47:8-13. Yet despite having knowledge of the “same 23 set of facts and transactions” at the time of Plaintiff Campbell’s original Complaint in August 10, 24 2012, and Plaintiff Ennis’s original Complaint on January 17, 2013, Plaintiffs did not seek to assert 25 the negligence claim until the September 19, 2013 case management conference—more than one 26 year after the filing of Plaintiff Campbell’s original Complaint. Plaintiffs do not offer a reasonable 27 explanation as to why they did not seek to assert the negligence claim sooner. Plaintiffs simply 28 state that the substitution of the negligent supervision claim with the negligence claim simply first 7 Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK ORDER DENYING MOTION FOR LEAVE TO AMEND 1 occurred to them on September 19, 2013 “during the ride down to attend the hearing on the motion 2 and the case management conference” where Plaintiffs’ counsel “discussed the challenges facing 3 plaintiffs in regard to the negligent supervision claim.” Siroka Decl. ¶ 4. Plaintiffs state that “in 4 the course of litigating Defendant’s Motion to Dismiss the SACC, it became clear that it would be 5 difficult to develop sufficient facts to sustain Plaintiff’s negligent supervision claim.” Reply at 2; 6 Siroka Decl. ¶ 4. 7 Plaintiffs should have known from the time of Campbell’s original Complaint that they 8 could have asserted their negligence cause of action given that Plaintiffs knew of the relevant facts 9 from the inception of this case. This is demonstrated by the fact that Plaintiffs themselves even United States District Court For the Northern District of California 10 concede that “Plaintiffs’ negligence cause of action closely resembles Plaintiffs’ [] negligent 11 supervision cause of action.” Mot. at 7. 12 Plaintiffs’ assertion that any delay was the result of “the parties’ and this Court’s 13 deliberations and attempts to meet and confer around Defendants’ Motion to Dismiss the Second 14 Amended Complaint” is unavailing. Mot. at 6. As the record shows, Plaintiffs amended their 15 complaints multiple times. Plaintiff Campbell filed her original Complaint on August 10, 2012, 16 Campbell ECF No. 1, and filed her FAC on December 20, 2012, Campbell ECF No. 11. On 17 January 16, 2013, Defendants moved to dismiss Campbell’s FAC and identified the deficiencies in 18 Campbell’s negligent supervision claim. Campbell ECF No. 26. On March 1, 2013, Campbell 19 opposed the motion to dismiss. Campbell ECF No. 42. Defendants replied on March 8, 2013. 20 Campbell ECF No. 47. At a minimum, Campbell was on notice of the deficiencies of her negligent 21 supervision claim on January 16, 2013, yet Campbell did not seek to assert a negligence claim until 22 September 19, 2013. 23 Plaintiff Ennis filed his original Complaint on January 17, 2013, Ennis ECF No. 1, and his 24 FAC on April 16, 2013, Ennis No. 8. On May 22, 2013, Defendants moved to dismiss Ennis’s 25 FAC and identified the deficiencies in Ennis’s negligent supervision claim. Ennis ECF No. 13. On 26 June 5, 2013, Ennis opposed the motion to dismiss. Ennis ECF No. 16. Defendants replied on 27 June 12, 2013. Ennis ECF No. 17. At a minimum, Ennis was on notice of the deficiencies of his 28 8 Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK ORDER DENYING MOTION FOR LEAVE TO AMEND 1 negligent supervision claim on May 22, 2013, yet Ennis did not seek to assert a negligence claim 2 until September 19, 2013. 3 After consolidation, Plaintiff Campbell and Plaintiff Ennis filed their SACC on July 9, 2013. Subsequently, Defendants moved to dismiss the SACC on August 12, 2013 (Campbell ECF 5 No. 94). Further, as Plaintiffs’ counsel admit, the idea of asserting the negligence claim did not 6 occur to them until September 19, 2013, almost a week after their September 13, 2013 meet and 7 confer and Joint Status Report in which Plaintiffs agreed not to add new causes of action in 8 exchange for adding a new defendant and new allegations to Plaintiffs’ SACC. See Siroka Decl. ¶¶ 9 3-5. Contrary to Plaintiffs’ assertion that any delay was the result of “the parties’ and this Court’s 10 United States District Court For the Northern District of California 4 deliberations and attempts to meet and confer around Defendants’ Motion to Dismiss the Second 11 Amended Complaint,” Mot. at 6, such delay was entirely Plaintiffs’ own doing. 12 13 Accordingly, the Court finds that Plaintiffs unduly delayed in seeking to amend their complaint to assert a negligence cause of action. 14 B. Prejudice to Defendants 15 Plaintiffs argue that no prejudice will result from allowing Plaintiffs to substitute the 16 negligent supervision claim with the negligence claim because Plaintiffs have already alleged that 17 Defendant Feld was under a duty of care to Plaintiffs and breached that duty of care by the various 18 actions set forth in the SACC. Mot. at 9. Defendants, however, contend that they will be 19 prejudiced by further amendment because Defendants relied on Plaintiffs’ agreement not to add 20 new causes of action to the SACC. Opp. at 8. In particular, Defendants agreed to allow Plaintiffs 21 to amend their complaint to assert factual allegations relating to the alleged incidents in August 22 2013 and to add a new defendant, Defendant Feld Entertainment, Inc.’s employee, in exchange for 23 Plaintiffs’ written agreement that “no new causes of action will be added.” Id. Defendants also 24 point out that Plaintiffs have had multiple opportunities to amend their complaints. For the reasons 25 set forth below, the Court finds that Defendants will be prejudiced by Plaintiffs’ further 26 amendment. 27 28 An amendment’s potential prejudice to the opposing party “carries the greatest weight” among the factors in deciding to grant leave to amend. Eminence Capital, 316 F.3d at 1079. 9 Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK ORDER DENYING MOTION FOR LEAVE TO AMEND 1 Courts have found prejudice when there were many efforts to amend the complaint. See Mir v. 2 Fosburg, 646 F.2d 342, 347 (9th Cir. 1980). The district court’s discretion to deny leave to amend 3 is particularly broad where plaintiff has previously amended the complaint. Ascon Props., Inc. v. 4 Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (citing DCD Programs, Ltd. v. Leighton, 833 5 F.2d 183, 186 (9th Cir. 1987)); Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir. 1980). 6 As an initial matter, Plaintiffs have had numerous opportunities to plead negligence. 7 Plaintiffs contend that they “have amended their complaint once in the present case, when they 8 filed their Second Consolidated Amended Complaint on July 9, 2013.” Mot. at 5. However, 9 Plaintiffs’ assertion is belied by the record in this case. Prior to Plaintiffs’ instant motion, Plaintiffs United States District Court For the Northern District of California 10 have filed five complaints. The Court notes that after Plaintiffs’ instant motion, Plaintiffs filed 11 their sixth complaint on October 21, 2013. Campbell ECF No. 124. Plaintiff Campbell filed her 12 original Complaint on August 10, 2012, Campbell ECF No. 1, and filed her FAC on December 20, 13 2012, Campbell ECF No. 11. Meanwhile, Plaintiff Ennis filed his original Complaint on January 14 17, 2013, Ennis ECF No. 1, and his FAC on April 16, 2013, Ennis No. 8. After consolidation, 15 Plaintiff Campbell and Plaintiff Ennis filed their SACC on July 9, 2013. Campbell ECF No. 73. 16 Notably, none of Plaintiffs’ five complaints alleged negligence, despite Plaintiffs’ admission that 17 “[t]he negligence cause of action arises out of the same set of facts and transactions that gave rise 18 to Plaintiffs’ original complaint and which form the basis for this action.” Mot. at 8. As stated 19 above, Plaintiffs have failed to provide a reasonable explanation as to why they did not allege the 20 negligence claim earlier. Plaintiff Campbell at least had knowledge of the same set of facts since 21 the inception of her case in August 10, 2012, and Plaintiff Ennis also had knowledge of the same 22 set of facts since the inception of his case in January 17, 2013. Yet Plaintiffs did not raise this 23 issue until the September 19, 2013 Case Management Conference. Thus, more than a year after 24 Plaintiff Campbell’s original Complaint and more than eight months after Plaintiff Ennis’s original 25 Complaint, both Plaintiffs knew of the same set of facts yet failed to plead negligence despite 26 numerous opportunities to do so. 27 Defendants have moved to dismiss Plaintiffs’ complaints four times: (1) Defendant Feld 28 Entertainment, Inc. moved to dismiss Campbell’s FAC on January 16, 2013, Campbell ECF No. 10 Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK ORDER DENYING MOTION FOR LEAVE TO AMEND 1 26; (2) Defendants moved to dismiss Ennis’s FAC on May 22, 2013, Ennis ECF No. 17; (3) 2 Defendants moved to dismiss Plaintiffs’ SACC on August 12, 2013, Campbell ECF No. 94; and (4) 3 Defendants moved to dismiss Plaintiffs’ TACC on November 4, 2013, Campbell ECF No. 126. 4 Defendants have also opposed Plaintiffs’ motion for preliminary injunction on July 29, 2013. 5 Campbell ECF No. 84. Presumably, if the Court were to allow Plaintiffs to amend the complaint 6 again, Defendants will again need to evaluate whether to respond by filing a motion or a responsive 7 pleading. However, Defendants should not be required to respond to a continually moving target, 8 and at some point, the litigation must move forward. See Franczak v. Suntrust Mortg., Inc., Case 9 No. 5:12-cv-01453 EJD, 2013 U.S. Dist. LEXIS 126977, *11-12 (N.D. Cal. Sept. 5, 2013) United States District Court For the Northern District of California 10 (concluding that allowing further amendments after Plaintiff has already amended his pleading 11 twice would cause undue delay and would, ultimately, unduly prejudice defendant); see also 12 O’Banion v. Select Portfolio Servs., Inc., Case No. 1:09-cv-00249-EJL-CWD, 2011 U.S. Dist. 13 LEXIS 133116, at *18 (D. Idaho Nov. 16, 2011) (finding filing of second amended complaint 14 prejudicial given the “numerous indulgences the Court has allowed Plaintiffs in filing, amending 15 and pursuing their claims.”). This action began in August 2012—approximately a year and a half 16 ago—and it is time to settle the pleadings. 17 The Court notes that, in denying Plaintiffs’ motion for preliminary injunction, the Court 18 held that Plaintiffs failed to meet their burden of showing likelihood of success on the merits. 19 Campbell ECF No. 103. Plaintiffs concede “that it would be difficult to develop sufficient facts to 20 sustain Plaintiffs’ negligent supervision claim.” See Reply at 2. As a result, Plaintiffs’ withdrew 21 their negligent supervision claim at the September 19, 2013 case management conference. Sept. 22 19, 2013 Tr. at 47:8-9. Accordingly, it is unfair for Plaintiffs to now assert negligence in place of a 23 withdrawn and unsustainable negligent supervision claim. 24 Finally, the Court is cognizant of the parties’ agreement that “no new causes of action will 25 be added” to the SACC. September 13, 2013 Joint Status Report at 3. Plaintiff Campbell had filed 26 a motion to supplement her complaint to include one new defendant and new allegations relating to 27 the alleged conduct of this individual in August 2013. Campbell ECF No. 110. After extensive 28 negotiations, Defendants agreed to allow Plaintiffs to add a new defendant, Defendant Feld 11 Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK ORDER DENYING MOTION FOR LEAVE TO AMEND 1 Entertainment, Inc.’s employee, and new factual allegations with the condition that “[n]o new 2 causes of action will be added.” September 13, 2013 Joint Status Report at 3. Now, Plaintiffs seek 3 leave to amend their SACC to add a new cause of action: negligence. Plaintiffs contend that 4 “[Plaintiff Ennis’s counsel] expressly stated that he did not intend to be bound by any agreement 5 not to seek further amendment to the complaint outside of the scope of the parties’ stipulation.” 6 Reply at 3. However, the agreement contradicts Plaintiffs’ contention. See September 13, 2013 7 Joint Status Report at 3 (stating “no new causes of action will be added.”). Defendants, therefore, 8 reasonably relied on the language of the agreement and in exchange, allowed Plaintiffs to include 9 the new factual allegations regarding events arising in August 2013 and one new defendant, United States District Court For the Northern District of California 10 Defendant Feld Entertainment, Inc.’s employee. See TACC at 14. 11 Accordingly, at this stage, the Court finds that allowing Plaintiffs to amend their complaint 12 will unduly prejudice Defendants. 13 IV. 14 CONCLUSION For the foregoing reasons, the Court DENIES Plaintiffs’ Motion for Leave to Amend to 15 substitute their negligent supervision claim with the negligence claim. 16 IT IS SO ORDERED. 17 18 Dated: February 14, 2014 _________________________________ LUCY H. KOH United States District Judge 19 20 21 22 23 24 25 26 27 28 12 Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK ORDER DENYING MOTION FOR LEAVE TO AMEND

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