Ninteman v. The Dutra Group

Filing 32

ORDER Granting 30 Plaintiff's Unopposed Motion for Leave to File Second Amended Complaint. The Court grants Plaintiff's unopposed motion for leave to file a Third Amended Complaint. The Clerk of Court is instructed to file Plaintiff's Third Amended Complaint (Doc. No. 30-1) as a separate docket entry. Signed by Judge Michael M. Anello on 6/18/2019. (rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT NINTEMAN,

Case No.: 18cv1222-MMA (AGS)
Plaintiff,

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v.

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ORDER GRANTING PLAINTIFF'S
UNOPPOSED MOTION FOR LEAVE
TO FILE SECOND AMENDED
COMPLAINT

THE DUTRA GROUP and R.E. STAITE
ENGINEERING, INC.,

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Defendants.

[Doc. No. 30]

On June 11, 2018, Plaintiff Robert Ninteman (“Plaintiff”) commenced this action
against Defendant The Dutra Group (“Dutra”) alleging claims for negligence under the
Jones Act, and maintenance, cure and unearned wages under general maritime law. Doc.
No. 1. On October 16, 2018, the Court granted Plaintiff leave to file a First Amended
Complaint, which added a cause of action for unseaworthiness due to the lack of fall
protection on the vessels to which Plaintiff was assigned. Doc. No. 15. On January 23,
2019, the Court granted Plaintiff leave to file a Second Amended Complaint, which
added a general maritime law negligence cause of action against a new defendant, R.E.
Staite Engineering, Inc. (“R.E. Staite”), and added R.E. Staite as a defendant to the
unseaworthiness cause of action. Doc. No. 18. On May 9, 2019, Plaintiff filed a motion
requesting leave to file a Third Amended Complaint (“TAC”). Doc. No. 30-2 (“Mtn.”).
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18cv1222-MMA (AGS)

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To date, Defendants have not filed oppositions to Plaintiff’s motion. See Docket. The

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Court, in its discretion, decides the matter on the papers submitted and without oral

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argument pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, the Court

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GRANTS Plaintiff’s unopposed motion for leave to file a TAC.

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LEGAL STANDARD
Federal Rule of Civil Procedure 15 governs amendment of pleadings. It states that

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if a responsive pleading has already been filed, the party seeking amendment “may

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amend the party’s pleading only by leave of court or by written consent of the adverse

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party; and leave shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a).

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This rule reflects an underlying policy that disputes should be determined on their merits,

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and not on the technicalities of pleading rules. See Foman v. Davis, 371 U.S. 178, 181-

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82 (1962). Accordingly, the Court must be generous in granting leave to amend. See

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Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (noting

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leave to amend should be granted with “extreme liberality”); Ascon Props., Inc. v. Mobil

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Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989).

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However, courts may deny leave to amend for several reasons, including the

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presence of bad faith on the part of the plaintiff, undue delay, prejudice to the defendant,

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futility of amendment, and whether the plaintiff has previously filed an amended

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complaint. See Ascon Props., 866 F.2d at 1160; McGlinchy v. Shell Chem. Co., 845 F.2d

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802, 809 (9th Cir. 1988). The test of futility “is identical to the one used when

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considering the sufficiency of a pleading challenged under Rule 12(b)(6).” Miller v.

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Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).

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DISCUSSION
Plaintiff seeks to amend his complaint by making “minor” changes “to make his

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negligence and unseaworthiness claims more specific.” Mtn. at 3. Specifically, he seeks

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to modify the last sentence of paragraph six (6), add a sentence to the end of paragraph

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twelve (12), and add a sentence to the end of paragraph eighteen (18). Id. at 2-3.

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Plaintiff requests the Court grant him leave to amend because there is no undue delay or
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prejudice to Defendants and leave to amend would not be futile. See generally, id. Here,

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while Plaintiff has previously amended his complaint twice, the Court does not find

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evidence of bad faith, prejudice to Defendants, or futility with respect to Plaintiff’s

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proposed amendment. Additionally, Plaintiff filed his motion by the deadline set forth in

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the Court’s scheduling order (see Doc. No. 29), and it does not appear that Plaintiff

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delayed in filing the instant motion.

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CONCLUSION
Accordingly, the Court GRANTS Plaintiff’s unopposed motion for leave to file a
Third Amended Complaint. The Clerk of Court is instructed to file Plaintiff’s Third
Amended Complaint (Doc. No. 30-1) as a separate docket entry.
IT IS SO ORDERED.
Dated: June 18, 2019

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