Lillis v. Apria Healthcare et al

Filing 81

ORDER Granting Plaintiff's 51 Motion for Leave to File a First Amended Complaint. Plaintiff shall filed his first amended complaint on or before Monday, October 15, 2012. Signed by Judge Irma E. Gonzalez on 10/5/2012. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LANCE W. LILLIS,

CASE NO. 12-CV-52 - IEG (KSC)

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Plaintiff,

ORDER GRANTING
PLAINTIFF’S MOTION FOR
LEAVE TO FILE A FIRST
AMENDED COMPLAINT

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vs.
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APRIA HEALTHCARE, et al.,

[Doc. No. 51]
Defendants.

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Before the Court is Plaintiff Lance W. Lillis’s renewed motion for leave to file a first
amended complaint. [Doc. No. 51.] For the reasons below, the Court GRANTS Plaintiff’s
motion.
BACKGROUND
Plaintiff, proceeding pro se, commenced this action on January 6, 2012, alleging that
named Defendants Apria Healthcare (“Apria”) and Blackstone Investment Group (“Blackstone”)
wrongfully terminated him on the basis of age and disability. [See Doc. No. 1.] On March 9,
2012, Defendant Apria filed an answer, [Doc. No. 12], and on April 12, 2012, Defendant
Blackstone, erroneously named as “Blackstone Investment Group” rather than “ Blackstone Group
LP” in the initial complaint, moved to dismiss for lack of proper service, [Doc. No. 26]. Then, on
May 1, 2012, Plaintiff filed a motion for leave to file an amended complaint, but failed to serve a
proposed amended complaint. [Doc. No. 32.] Consequently, on May 2, 2012, the Court issued an
order denying Plaintiff’s motion to amend without prejudice to renewal once accompanied by a

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proposed amended complaint. [Doc. No. 33.] In that same order, the Court similarly denied

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Defendant Blackstone’s motion to dismiss without prejudice “to being renewed after the Court

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rules upon Plaintiff’s [renewed] motion to amend.” [Id. at 2.] Plaintiff’s renewed motion to

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amend is now before the Court ripe for resolution. [Doc. No. 51.]

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DISCUSSION

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“The court should give leave [to amend] freely when justice so requires.” Fed. R. Civ. P.

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15(a)(2). In the Ninth Circuit, “Rule 15’s policy of favoring amendments to pleadings should be

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applied with ‘extreme liberality,’” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981), and

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“[t]his policy is applied even more liberally to pro se litigants.” Eldridge v. Block, 832 F.2d 1132,

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1135 (9th Cir. 1987). Against this extremely liberal standard, the Court may consider “the

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presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or

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futility.” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). But

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“[n]ot all of the factors merit equal weight . . . it is the consideration of prejudice to the opposing

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party that carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,

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1052 (9th Cir. 2003). “Absent prejudice, or a strong showing of any of the remaining [] factors,

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there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id. The party

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opposing amendment bears the heavy burden of overcoming this presumption. DCD Programs,

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Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).

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Here, Defendants fail to carry their heavy burden. Beyond thin reference to additional

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discovery (without any attempt to specify or quantify its potential cost or scope) Defendants make

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no showing of prejudice. [See Doc. No. 76 at 16.] Nor any showing of bad faith or undue delay.

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[See id.] Rather, Defendants focus almost exclusively on the purported futility of Plaintiff’s

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proposed claims. [See id. at 7-14.] But “a proposed amendment is futile only if no set of facts can

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be proved under the amendment to the pleadings that would constitute a valid and sufficient claim

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or defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). And “[d]enial of

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leave to amend on this ground is rare. Ordinarily, courts will defer consideration of [futility]

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challenges . . . until after leave to amend is granted and the amended pleading is filed.” Netbula,

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LLC v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003); accord Green Valley Corp. v. Caldo
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Oil Co., 2011 WL 1465883, at *6 (N.D. Cal. April 18, 2011) (noting “the general preference

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against denying a motion for leave to amend based on futility.”); Fair Housing Council of Cent.

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California, Inc. v. Nunez, at *4 (E.D. Cal. Jan. 24, 2012) (“denial of leave to amend due to futility

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is rare;” “courts will defer consideration . . . until after . . . the amended pleading is filed.”).

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Defendants fail to justify any break from the ordinary here; their arguments to the sufficiency of

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the proposed pleadings, even if merited, remain better left for full briefing on a motion to dismiss.

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See Pilavskaya v. Henderson, 2012 WL 3279517, at *5 (C.D. Cal. Aug. 9, 2012) (“Whether []

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claims are properly pled is better left for a motion to dismiss.”); Defazio v. Hollister, Inc., 2008

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WL 2825045, at *3 n.5 (E.D. Cal. July 21, 2008) (“opposition papers arguing the merits of

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plaintiffs’ proffered amendments [are] premature in that they require the court to assume that there

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are no facts that could support plaintiff’s proposed claims.”). In light of the Ninth Circuit’s

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extremely liberal policy favoring leave to amend in the pro se context, the Court will not indulge

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Defendants’ attempt to convert Plaintiff’s motion to amend into a premature motion to dismiss. As

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Defendants establish neither prejudice nor a strong showing of any other factor, they fail to meet

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their burden in opposing leave to amend. Eminence Capital, 316 F.3d at 1052.

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CONCLUSION

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For the foregoing reasons, Plaintiff’s motion for leave to file a first amended complaint is

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GRANTED. Plaintiff shall filed his first amended complaint on or before Monday, October 15,

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2012. Once Plaintiff’s first amended complaint is filed, the Clerk of the Court is directed to issue

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summons for newly-named defendants Blackstone Group L.P., Norman C. Payson, Daniel E.

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Greenleaf, Chris A Karkenny, Howard Derman, Lisa M. Getson, Robert S. Holcombe, Cameron

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Thompson, Stephen A. Schwarzman, Hamilton E. James, J. Tomlinson Hill, Laurerice Tosi, and

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John G. Finley.

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IT IS SO ORDERED.
DATED:

October 5, 2012

______________________________
IRMA E. GONZALEZ
United States District Judge

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