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)

E-filed 6/6/2017

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TERRACE ELLIS,
Plaintiff,

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United States District Court
Northern District of California

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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

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“National Renewable Energy Center” as the Defendant. Dkt. No. 1. On May 18, 2017, Ellis filed

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a First Amended Complaint (“FAC”) that changed the name of the Defendant to “Renewable

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Energy Center, LLC, dba National Renewable Energy Center.” Dkt. No. 11. In the FAC, Ellis

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alleges that Linda Lucero (“Lucero”), an attorney for Defendant, had informed her that there had

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been a flaw in the summons involving her client’s name (the summons had named “National

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Center for Renewable Energy” rather than “National Renewable Energy Center”). Id., ¶ 9.

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Lucero allegedly called Ellis again some weeks later and informed her “that the summons and

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complaint should be modified to reflect her client (Renewable Energy Center) vs. NREC or

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NCRE.” Id., ¶ 15. Ellis further alleges that “National Renewable Energy Center” is a “fictitious

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business name” for a corporation called “Energy Enterprises USA, Inc.,” id., ¶ 18. Ellis filed a

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Second Amended Complaint (“SAC”) on June 5, 2017, adding “Energy Enterprise USA, Inc., dba

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National Renewable Energy Center” as a Defendant. Dkt. No. 17.

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A party may amend its pleadings once as a matter of course; in all other cases, a party may

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amend its pleading “only with the opposing party’s written consent or the court’s leave.” Fed. R.

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Civ. P. 15(a). Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend

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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

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amended pleading to be properly introduced “‘when the court would have granted leave to amend

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had it been sought.’” Brockmeier v. Solana Cnty. Sheriff’s Dept., No. CIV S-05-2090 MCE EFB

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PS, 2007 WL 1521074 (E.D. Cal. May 22, 2007) (quoting Ritzer v. Gerovicap Pharmaceutical

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Corp., 162 F.R.D. 642, 644 (D. Nev. 1995)). Courts typically review four factors when evaluating

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motions for leave to amend: “bad faith, undue delay, prejudice to the opposing party, and futility

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of amendment.” Roth v. Garcia Marquez, 942 F.2d 617 (9th Cir. 1991) (quoting DCD Programs,

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Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987)). Considering the account of Ellis’s efforts

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and her communications with Lucero contained in the first and second amended complaints, the

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court determines that bad faith, undue delay, and prejudice are not concerns here. Additionally,

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United States District Court
Northern District of California

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the court is not aware at this time of any considerations suggesting that amendment is futile.

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For these reasons, the court construes the SAC as a motion for leave to amend, which it

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hereby grants, and deems the SAC properly introduced. Plaintiff may serve the SAC in

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accordance with the Federal Rules of Civil Procedure. Plaintiff is advised that leave of the court is

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required for any further amendments of the complaint.

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IT IS SO ORDERED.
Dated: 6/6/2017

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HOWARD R. LLOYD
United States Magistrate Judge

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