Contasti et al v. City of Solana Beach

Filing 14

ORDER: The (Doc. 10 ) Motion to Amend the Complaint is granted. No later than 14 days from the date this Order is filed, Plaintiffs shall file the proposed amended complaint which is attached to the Motion to Amend. Signed by Judge William Q. Hayes on 1/20/2010. (mdc) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 HAYES, Judge: 17 19 I. 20 The matter before the Court is the Motion to the Amend Complaint, filed by Plaintiffs. 18 (Doc. # 10). Background On June 25, 2009, Plaintiffs initiated this action by filing the "Complaint for Damages ANDREW CONTASTI, ANNETTE CONTASTI and JOE HERNANDEZ, individuals, vs. CITY OF SOLANA BEACH, Plaintiffs, CASE NO. 09cv1371-WQH-BLM ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Defendant.

21 [42 U.S.C. § 1983]" ("Complaint"). (Doc. # 1). The Complaint alleged that Defendant's 22 denial of Plaintiffs' application for a building permit constituted a deprivation of Plaintiffs' 23 rights to due process and equal protection under the Fourteenth Amendment to the United 24 States Constitution, thereby violating 42 U.S.C. § 1983. 25 26 On July 20, 2009, Defendant filed a Motion to Dismiss. (Doc. # 5). On November 11, 2009, the Court dismissed the Complaint for lack of subject matter

27 jurisdiction. (Doc. # 9). The Court stated: "No later than thirty (30) days from the date of this 28 Order, Plaintiffs may file a motion for leave to amend the Complaint, accompanied by a
-109cv1371-WQH-BLM

1 proposed amended complaint." (Doc. # 9 at 8). 2 On December 8, 2009, Plaintiffs filed the Motion to Amend the Complaint and attached

3 a proposed amended complaint. (Doc. # 10). 4 On December 28, 2009, Defendant filed an opposition to the Motion to Amend. (Doc.

5 # 12). Defendant contends that the proposed amended complaint fails to allege that Plaintiffs' 6 claims are ripe pursuant to the standard stated in Herrington v. County of Sonoma, 857 F.2d 7 567 (9th Cir. 1988). 8 On January 4, 2010, Plaintiffs filed a reply brief in support of the Motion to Amend.

9 (Doc. # 13). 10 II. 11 Discussion Rule 15 of the Federal Rules of Civil Procedure mandates that leave to amend "be freely

12 given when justice so requires." Fed. R. Civ. P. 15(a). "This policy is to be applied with 13 extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 14 2003) (quotation omitted). In Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court 15 offered several factors for district courts to consider in deciding whether to grant a motion to 16 amend under Rule 15(a): 17 18 19 In the absence of any apparent or declared reason­such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.­the leave sought should, as the rules require, be `freely given.'

20 Foman, 371 U.S. at 182; see also Smith v. Pac. Prop. Dev. Co., 358 F.3d 1097, 1101 (9th Cir. 21 2004) (citing Forman factors). 22 "Not all of the [Foman] factors merit equal weight. As this circuit and others have held,

23 it is the consideration of prejudice to the opposing party that carries the greatest weight." 24 Eminence Capital, 316 F.3d at 1052 (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 25 185 (9th Cir. 1987)). "The party opposing amendment bears the burden of showing prejudice." 26 DCD Programs, 833 F.2d at 187. "Absent prejudice, or a strong showing of any of the 27 remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting 28 leave to amend." Eminence Capital, 316 F.3d at 1052.
-209cv1371-WQH-BLM

1

"While some courts liken the futility inquiry with that of a motion to dismiss, most

2 recognize that `[d]enial of leave to amend on [futility] ground[s] is rare.'" Defazio v. Hollister, 3 Inc., No. Civ. 04-1358, 2008 WL 2825045, at *2 (E.D. Cal., July 21, 2008) (quoting Netbula 4 v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003); citing, inter alia, Big Bear Lodging 5 Ass'n v. Snow Summit, Inc., 182 F.3d 1096, 1105 (9th Cir. 1999)). "Ordinarily, courts will 6 defer consideration of challenges to the merits of a proposed amended pleading until after 7 leave to amend is granted and the amended pleading is filed." Netbula, 212 F.R.D. at 539 8 (citation omitted). 9 Defendant does not contend that the proposed amended complaint would impose undue

10 prejudice or that Plaintiffs have exhibited undue delay or bad faith. Defendant's sole argument 11 against granting leave to amend is the futility of the amendment. "In view of Rule 15(a)'s 12 permissive standard, courts ordinarily defer consideration of challenges to the merits of a 13 proposed amended pleading until after leave to amend is granted and the amended pleading 14 is filed." Hynix Semiconductor Inc. v. Toshiba Corp., No. C-04-4708, 2006 WL 3093812, at 15 *2 (N.D. Cal., Oct. 31, 2006) ("Hynix's arguments should be addressed in a motion to dismiss 16 or for summary judgment, not in an opposition to the present motion for leave to amend."). 17 After reviewing the proposed amended complaint, the Court finds that this procedure is 18 appropriate in this case. 19 III. 20 Conclusion IT IS HEREBY ORDERED that the Motion to Amend the Complaint is GRANTED.

21 (Doc. # 10). No later than fourteen (14) days from the date this Order is filed, Plaintiffs shall 22 file the proposed amended complaint which is attached to the Motion to Amend. 23 24 DATED: January 20, 2010 25 26 27 28
-309cv1371-WQH-BLM

WILLIAM Q. HAYES United States District Judge