Francis v. Oregon State University et al

Filing 26

ORDER Granting 24 Motion for Leave to Amend Complaint. No later than fourteen (14) days from the date this order is issued, Plaintiff may file the proposed first amended complaint which is attached to the motion. If Plaintiff does not file the first amended complaint within fourteen days, the Court will order the Clerk of Court to close this case. Signed by Judge William Q. Hayes on 09/11/2017. (ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SYDNEY FRANCIS,

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v.

CASE NO. 16cv1860-WQH-WVG
Plaintiff,

ORDER

OREGON STATE UNIVERSITY;
TARAS LISKEVYCH; and DOES 1
through 100, inclusive,
Defendants.
HAYES, Judge:
The matter before the Court is the Motion for Leave to Amend Complaint. (ECF
No. 24).
I. Background
On July 21, 2017, Plaintiff Sydney Francis initiated this action by filing a
complaint against Defendants Oregon State University and Taras Liskevych alleging
causes of action for (1) breach of contract, (2) fraud/deceit, (3) fraud/bad faith, (4)
intentional infliction of emotional distress, (5) civil conspiracy, and (6) punitive
damages. (ECF No. 1).
On June 1, 2017 the Court issued an order dismissing the complaint in its
entirety. (ECF No. 23). The Court dismissed certain causes of action for failure to state
a claim pursuant to Rule 12(b)(6). However, Plaintiff’s causes of action for “frauddeceit” and “fraud-bad faith” were dismissed because they were contained on a page of
the complaint that was not properly served upon the Defendants. Id. at 13-14. The
order stated in part:

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16cv1860-WQH-WVG

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The complaint is dismissed in its entirety without prejudice as to both
Defendant Oregon State University and Defendant Taras Liskevych. (ECF
No. 1). Any motion to file an amended complaint shall be filed within 60
days of the date this Order is filed pursuant to Local Civil Rule 7.1. If no
motion to file an amended complaint is filed, the Clerk of Court shall close
the case.
(ECF No. 23).
On July 3, 2017, Plaintiff filed a Motion for Leave to Amend Complaint. (ECF
No. 24). Defendant Oregon State University filed a response in opposition. (ECF No.
25). The docket reflects that Plaintiff has not filed a reply.
II. Discussion
Plaintiff contends that leave to amend should be granted because there is no
undue delay or prejudice to Defendants. (ECF No. 24-1). Plaintiff contends that her
amended complaint would not be futile because she “has substantial claims against the
Defendants for tortious conduct independent and apart from the breach of contract
claim.” Id. at 3.
Defendant contends that leave to amend should be denied because the addition
of the previously missing page of the complaint does not cure the deficiencies of the
complaint. (ECF No. 25 at 2). Defendant contends that Plaintiff fails to allege
sufficient facts to allege a cognizable claim for fraud under Oregon or California law.
Id. at 3-5. Defendant contends that Plaintiff’s fraud claims are barred by the statute of
limitations under Oregon law. Id. at 5-6.
Federal Rule of Civil Procedure 15 mandates that leave to amend “be freely given
when justice so requires.” Fed. R. Civ. P. 15(a). “This policy is to be applied with
extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th
Cir. 2003) (quotation omitted). In Foman v. Davis, 371 U.S. 178 (1962), the Supreme
Court offered several factors for district courts to consider in deciding whether to grant
a motion to amend under Rule 15(a):
In the absence of any apparent or declared reason – such 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
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amendment, etc. – the leave sought should, as the rules require, be “freely
given.”
2 Foman, 371 U.S. at 182; see also Smith v. Pac. Prop. Dev. Co., 358 F.3d 1097, 1101
3 (9th Cir. 2004). “Not all of the [Foman] factors merit equal weight. As this circuit and
4 others have held, it is the consideration of prejudice to the opposing party that carries
5 the greatest weight.” Eminence Capital, 316 F.3d at 1052 (citations omitted). “The
6 party opposing amendment bears the burden of showing prejudice.” DCD Programs,
7 Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). “Absent prejudice, or a strong
8 showing of any of the remaining Foman factors, there exists a presumption under Rule
9 15(a) in favor of granting leave to amend.” Eminence Capital, 316 F.3d at 1052.
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The Court concludes that Defendant has not made a sufficiently strong showing

11 of the Foman factors to overcome the presumption of Rule 15(a) in favor of granting
12 leave to amend. See Eminence Capital, 316 F.3d at 1052. The Court will defer
13 consideration of any challenge to the merits of the proposed amended complaint until
14 after the amended pleading is filed. See Hynix Semiconductor Inc. v. Toshiba Corp.,
15 No. C-04-4708, 2006 WL 3093812, at *2 (N.D. Cal. Oct. 31, 2006) (“In view of Rule
16 15(a)’s permissive standard, courts ordinarily defer consideration of challenges to the
17 merits of a proposed amended pleading until after leave to amend is granted and the
18 amended pleading is filed.”).
19 III. Conclusion
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IT IS HEREBY ORDERED that the Motion for Leave to Amend Complaint

21 (ECF No. 24) is granted. No later than fourteen (14) days from the date this order is
22 issued, Plaintiff may file the proposed first amended complaint which is attached to the
23 motion. If Plaintiff does not file the first amended complaint within fourteen days, the
24 Court will order the Clerk of Court to close this case.
25 DATED: September 11, 2017
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WILLIAM Q. HAYES
United States District Judge

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