McKean v. ABC Financial Services, Inc. et al

Filing 41

ORDER: Plaintiff's Motion for an Order Granting Plaintiff Leave to File Second Amended Complaint (ECF No. 39 -1) is GRANTED. Plaintiff may file the proposed Second Amended Class Action Complaint (ECF No. 39 -4) within fourteen (14) days of the entry of this Order. Signed by Judge William Q. Hayes on 7/3/2019. (tcf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JACOB MCKEAN, individually, on
behalf of himself and all others
similarly situated,
Plaintiff,

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No. 3:18-cv-00923-WQH-RBB
ORDER

v.
ABC FINANCIAL SERVICES, INC.,
an Arkansas Corporation; THE
ARENA MARTIAL ARTS, a business
entity form unknown,

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Defendants.

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HAYES, Judge:

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The matter before the Court is Plaintiff’s Motion for an Order Granting
Plaintiff Leave to File Second Amended Complaint (ECF No. 39-1).

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I. Background

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On May 7, 2019, the Court granted the Motion to Dismiss filed by Defendant
ABC Financial Services, Inc. (ECF No. 38). On May 28, 2019, Plaintiff filed a
Motion for an Order Granting Plaintiff Leave to File Second Amended Complaint
(ECF No. 39). On June 18, 2019, Defendant1 filed a Notice of Non-Opposition.

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On August 21, 2018, a Clerk’s Default was entered against Defendant The Arena Martial Arts. (ECF No. 21). All
references to defendant in this Order refer to Defendant ABC Financial Services, Inc.
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(ECF No. 40).
I.

Federal Rule of Civil Procedure 15 mandates that leave to amend “be freely

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Legal Standard

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,

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1051 (9th Cir. 2003) (per curiam) (quoting Owens v. Kaiser Found. Health Plan,

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Inc., 244 F.3d 708, 712 (9th Cir. 2001)). The Supreme Court has identified several

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factors district courts should consider when deciding whether to grant leave to

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amend: “undue delay, bad faith or dilatory motive on the part of the movant,

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repeated failure to cure deficiencies by amendments previously allowed, undue

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prejudice to the opposing party by virtue of allowance of the amendment, [and]

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futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Smith

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v. Pac. Props. Dev. Corp., 358 F.3d 1097, 1101 (9th Cir. 2004). “Not all of the

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[Foman] factors merit equal weight. As this circuit and others have held, it is the

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consideration of prejudice to the opposing party that carries the greatest weight.”

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Eminence Capital, 316 F.3d at 1052. “The party opposing amendment bears the

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burden of showing prejudice.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187

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(9th Cir. 1987). “Absent prejudice, or a strong showing of any of the remaining

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Foman factors, there exists a presumption under Rule 15(a) in favor of granting

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leave to amend.” Eminence Capital, 316 F.3d at 1052.

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II.

Decision of the Court

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Defendant does not oppose Plaintiff’s Motion for an Order Granting Plaintiff

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Leave to File Second Amended Complaint. The Court finds that there has been no

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showing that any of the Foman factors warrants deviating from the “presumption

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under Rule 15(a) in favor of granting leave to amend.” Eminence Capital, 316 F.3d

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at 1052.

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Plaintiff’s Motion for an Order Granting Plaintiff Leave to File Second

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Amended Complaint (ECF No. 39-1) is GRANTED. Plaintiff may file the proposed
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Second Amended Class Action Complaint (ECF No. 39-4) within fourteen (14) days
of the entry of this Order.
Dated: July 3, 2019

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