Ellis v. National Renewable Energy Center

Filing 18

Order deeming Second Amended Complaint properly filed signed by Magistrate Judge Howard R. Lloyd on 6/6/2017. (hrllc3S, COURT STAFF) (Filed on 6/6/2017)

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E-filed 6/6/2017 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TERRACE ELLIS, Plaintiff, 8 9 10 United States District Court Northern District of California 11 12 v. Case No.17-cv-00497-HRL ORDER DEEMING SECOND AMENDED COMPLAINT PROPERLY FILED RENEWABLE ENERGY CENTER, LLC, Defendant. Re: Dkt. No. 17 On January 31, 2017, pro se plaintiff Terrace Ellis (“Ellis”) filed a complaint naming 13 “National Renewable Energy Center” as the Defendant. Dkt. No. 1. On May 18, 2017, Ellis filed 14 a First Amended Complaint (“FAC”) that changed the name of the Defendant to “Renewable 15 Energy Center, LLC, dba National Renewable Energy Center.” Dkt. No. 11. In the FAC, Ellis 16 alleges that Linda Lucero (“Lucero”), an attorney for Defendant, had informed her that there had 17 been a flaw in the summons involving her client’s name (the summons had named “National 18 Center for Renewable Energy” rather than “National Renewable Energy Center”). Id., ¶ 9. 19 Lucero allegedly called Ellis again some weeks later and informed her “that the summons and 20 complaint should be modified to reflect her client (Renewable Energy Center) vs. NREC or 21 NCRE.” Id., ¶ 15. Ellis further alleges that “National Renewable Energy Center” is a “fictitious 22 business name” for a corporation called “Energy Enterprises USA, Inc.,” id., ¶ 18. Ellis filed a 23 Second Amended Complaint (“SAC”) on June 5, 2017, adding “Energy Enterprise USA, Inc., dba 24 National Renewable Energy Center” as a Defendant. Dkt. No. 17. 25 A party may amend its pleadings once as a matter of course; in all other cases, a party may 26 amend its pleading “only with the opposing party’s written consent or the court’s leave.” Fed. R. 27 Civ. P. 15(a). Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend 28 shall be freely granted when justice so requires. Rule 21 permits a court to add or drop a party “[o]n motion or on its own” and “on just terms.” Further, the court may deem an improperly filed 2 amended pleading to be properly introduced “‘when the court would have granted leave to amend 3 had it been sought.’” Brockmeier v. Solana Cnty. Sheriff’s Dept., No. CIV S-05-2090 MCE EFB 4 PS, 2007 WL 1521074 (E.D. Cal. May 22, 2007) (quoting Ritzer v. Gerovicap Pharmaceutical 5 Corp., 162 F.R.D. 642, 644 (D. Nev. 1995)). Courts typically review four factors when evaluating 6 motions for leave to amend: “bad faith, undue delay, prejudice to the opposing party, and futility 7 of amendment.” Roth v. Garcia Marquez, 942 F.2d 617 (9th Cir. 1991) (quoting DCD Programs, 8 Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987)). Considering the account of Ellis’s efforts 9 and her communications with Lucero contained in the first and second amended complaints, the 10 court determines that bad faith, undue delay, and prejudice are not concerns here. Additionally, 11 United States District Court Northern District of California 1 the court is not aware at this time of any considerations suggesting that amendment is futile. 12 For these reasons, the court construes the SAC as a motion for leave to amend, which it 13 hereby grants, and deems the SAC properly introduced. Plaintiff may serve the SAC in 14 accordance with the Federal Rules of Civil Procedure. Plaintiff is advised that leave of the court is 15 required for any further amendments of the complaint. 16 17 IT IS SO ORDERED. Dated: 6/6/2017 18 19 HOWARD R. LLOYD United States Magistrate Judge 20 21 22 23 24 25 26 27 28 2

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