Bernstein v. Apollo Group, Inc. et al

Filing 47

ORDER by Judge Lucy H. Koh granting 45 Motion for Leave to File; finding as moot 13 Motion to Dismiss; finding as moot 19 Motion to Dismiss; finding as moot 19 Motion to Strike ; finding as moot 22 Motion to Appear by Telephone (lhklc3, COURT STAFF) (Filed on 7/17/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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M. HELEN BERNSTEIN,
Plaintiff,
v.
APOLLO GROUP, INC., et al.,
Defendants.

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Case No.: 13-CV-01701-LHK
ORDER GRANTING MOTION FOR
LEAVE TO AMEND; DENYING AS
MOOT MOTIONS TO DISMISS

Currently before the Court is Plaintiff’s Motion for Leave to File First Amended Complaint.

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ECF No. 45. On July 11, 2013, Defendants Apollo Group, Inc. and Phoenix, Inc. (collectively,

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“Defendants”) filed a Statement of Non-Opposition to Plaintiff’s Motion for Leave to File First

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Amended Complaint. ECF No. 46. Pursuant to Local Civil Rule 7-1(b), the Court finds this

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motion to be appropriate for determination without oral argument.

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Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a

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matter of course within 21 days of serving it. See Fed. R. Civ. P. 15(a)(1). After that initial period

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has passed, amendment is permitted only with the opposing party’s written consent or leave of the

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court. See Fed. R. Civ. P. 15(a)(2). Rule 15 instructs that “[t]he court should freely give leave

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when justice so requires.” Id. Although this rule “should be interpreted with extreme liberality,

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leave to amend is not to be granted automatically.” Jackson v. Bank of Hawaii, 902 F.2d 1385,

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1387 (9th Cir. 1990) (internal quotation marks and citation omitted).

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Case No.: 13-CV-01701-LHK
ORDER GRANTING MOTION FOR LEAVE TO AMEND; DENYING AS MOOT MOTIONS TO DISMISS

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Courts commonly consider four factors when determining whether to grant leave to amend:

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(1) bad faith on the part of the movant; (2) undue delay; (3) prejudice to the opposing party; and (4)

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futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); Lockheed Martin

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Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999) (same). Of these factors,

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prejudice to the opposing party is the most important. Jackson, 902 F.2d at 1387. In addition, a

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court may consider whether the plaintiff has previously amended his complaint. DCD Programs,

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Ltd. v. Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987). Where a court has already provided the

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plaintiff with one or more opportunities to amend her complaint, the court’s discretion over further

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amendments is particularly broad. Id.

United States District Court
For the Northern District of California

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The Court finds that granting leave to amend is appropriate in this case. First, there is no

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allegation of bad faith. Second, Plaintiff did not engage in undue delay. Third, granting leave to

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amend will not prejudice Defendants as Defendants are not opposing this motion. Finally, there is

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no reason to believe that amending the motion will prove futile. Accordingly, having considered

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the parties’ submissions and the relevant law, the Court GRANTS Plaintiff’s Motion for Leave to

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File First Amended Complaint.

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Accordingly, Defendants’ Motion to Dismiss Plaintiff’s Complaint and Motion to Strike

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Amendment to Complaint, ECF No. 13, and Defendants’ Amended Motion to Dismiss Plaintiff’s

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Complaint and Motion to Strike Amendment to Complaint, ECF No. 19, are hereby DENIED as

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moot. Likewise, the hearing on these motions, which is currently scheduled for October 10, 2013,

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is hereby VACATED.

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Defendants shall have twenty-one (21) days from the date of this Order to respond to

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Plaintiff’s First Amended Complaint.

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IT IS SO ORDERED.

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Dated: July 17, 2013

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LUCY H. KOH
United States District Judge

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Case No.: 13-CV-01701-LHK
ORDER GRANTING MOTION FOR LEAVE TO AMEND; DENYING AS MOOT MOTIONS TO DISMISS