Austin et al v. Western Concrete Pumping, Inc. et al

Filing 25

ORDER granting 21 Plaintiffs' Unopposed Motion for Leave to File a Second Amended Complaint. Plaintiffs are to file their second amended complaint by June 12, 2018. Signed by Judge Anthony J. Battaglia on 6/5/2018. (anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MIKE AUSTIN, an individual, on behalf
of himself and all others similarly situated,
and DANIEL L. VOEKS, JR., an
individual, on behalf of himself and all
others similarly situated,

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ORDER GRANTING PLAINTIFFS’
UNOPPOSED MOTION FOR LEAVE
TO FILE A SECOND AMENDED
COMPLAINT

Plaintiffs,

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Case No.: 17-cv-2363-AJB-MDD

v.
(Doc. No. 21)

WESTERN CONCRETE PUMPING,
INC., a California corporation, CHARLES
REED, an individual, and BRETT REID,
an individual,
Defendants.

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Plaintiffs request leave to file a second amended complaint. (See generally Doc. No.
21-1.) Explicitly, Plaintiffs seek to add a cause of action under the Private Attorney General
Act (“PAGA”). (Id.) Defendants do not oppose the motion. (Doc. No. 23.) As will be
explained in more detail below, the Court GRANTS Plaintiffs’ motion for leave to amend.
DISCUSSION
Plaintiffs delineate several factors supporting their motion: (1) that Plaintiffs have
followed PAGA’s procedural requirements; (2) pursuant to the case management order
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17-cv-2363-AJB-MDD

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entered in this case, Plaintiffs could file a motion for leave to amend on or before May 12,

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2018—Plaintiffs’ motion was filed on May 11, 2018; (3) Defendants were provided the

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proposed amended complaint; and (4) Plaintiffs complied with Civil Local Rule 15.1(b).

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(Doc. No. 21-1 at 2.) On May 25, 2018, Defendants filed a statement of non-opposition to

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Plaintiffs’ motion for leave to amend. (Doc. No. 23.)

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Federal Rule of Civil Procedure 15(a) states that a “court should freely give leave

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when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Bowles v. Reade, 198 F.3d 752,

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757 (9th Cir. 1999). But a district court need not grant leave to amend where the

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amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an

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undue delay in litigation; or (4) is futile. Bowles, 198 F.3d at 757–58; Jackson v. Bank of

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Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). However, not all of these factors merit equal

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weight. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). It is

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the consideration of prejudice that carries the greatest weight. Id. Absent prejudice, or a

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strong showing of the remaining factors, there is a presumption in favor of granting leave

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to amend. Id.

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Here, as the motion is unopposed and was filed before the deadline set by the case

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management order, the opposing party will not be prejudiced. See Lockheed Martin Corp.

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v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999) (explaining that where a

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motion to amend was made more than four months after the cutoff date, “[a] need to reopen

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discovery and therefore delay the proceedings supports a district court’s finding of

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prejudice . . . .”). Moreover, there is no evidence of bad faith and no reason to believe that

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the proposed amendment is futile. See SAES Getters S.p.A. v. Aeronex, Inc., 219 F. Supp.

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2d 1081, 1086 (S.D. Cal. 2002) (illustrating that an amendment is futile “only if it would

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clearly be subject to dismissal.”).

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Consequently, finding that none of the foregoing factors weighs against granting

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Plaintiffs leave to amend and most notably as Plaintiffs’ motion is unopposed, the Court

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finds leave to amend appropriate. See Gonzales v. F/V Daniela, No. 11cv01066 AJB

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(JMA), 2013 WL 444626, at *1 (S.D. Cal. Feb. 4, 2013) (concluding that leave to amend
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was warranted in light of the defendants’ non-opposition to the motion and the plaintiff’s

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reasonable explanation for the requested amendment); see also Garcia v. United States,

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No. 14cv1192-WQH-JLB, 2015 WL 4491205, at *3 (S.D. Cal. July 22, 2015) (granting

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the plaintiff’s motion for leave to file a fourth amended complaint after considering the

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motion and the defendants’ non-opposition).

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CONCLUSION

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Accordingly, the Court GRANTS Plaintiffs’ unopposed motion to file an amended

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complaint. Plaintiffs are to file their second amended complaint by June 12, 2018.

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Defendants will file a responsive pleading in accordance with the applicable rules.

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IT IS SO ORDERED.

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Dated: June 5, 2018

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