Bendure et al v. Star Targets et al
ORDER GRANTING 77 MOTION FOR LEAVE TO FILE AN AMENDED THIRD-PARTY COMPLAINT AGAINST THIRD-PARTY DEFENDANTS ROLLING THUNDER PYROTECHNIC CORP. AND MACRAFT, USA. TLD shall promptly file its amended pleading. Signed by Magistrate Judge Carolyn S Ostby on 11/13/2015. (cp) (NOB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
STAR TARGETS, JUSTIN
HARDY, TLD INDUSTRIES LLC,
CABELA’S WHOLESALE, INC.,
PYROTECHNIC, CORP. and
MACRAFT USA, LLC
ORDER GRANTING MOTION
FOR LEAVE TO FILE AN
CORP. AND MACRAFT, USA
TDL INDUSTRIES LLC,
PYROTECHNIC, CORP. and
Defendant/Third-Party Plaintiff TLD Industries, LLC (“TLD”) has
filed a motion for leave to file an amended Third-Party Complaint
against Rolling Thunder Pyrotechnic Corp. (“Rolling Thunder”) and
Macraft USA (“Macraft”). ECF 77. TLD’s counsel, who also represents
all remaining Defendants, represents that Plaintiff Casey Bendure does
not oppose the motion. Id. Rolling Thunder and Macraft have not
appeared. For the reasons that follow, the Court will grant TLD’s
Because the November 9, 2015 deadline set in the Court’s
Scheduling Order (ECF 72 at 2) has not yet passed, Rule 15(a), Fed. R.
Civ. P., governs whether the Court should permit TLD to amend its
third-party complaint. See Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 607-08 (9th Cir. 1992). Under Rule 15(a), “Leave to amend
should be granted unless amendment would cause prejudice to the
opposing party, is sought in bad faith, is futile, or creates undue delay.”
Id. at 607 (citation omitted). The Court concludes that none of these
exceptions to permitting amendment applies.
First, there is no indication that Rolling Thunder or Macraft
would suffer unfair prejudice as a result of the amendment that TLD
seeks. Neither party has appeared, so neither has engaged in discovery
or other pretrial proceedings.
Second, there is no evidence that TLD has acted with bad faith in
seeking to amend. Rather, TLD seeks leave to amend, at least in part,
because the Court, in rejecting TLD’s earlier attempt to secure default
judgment against Rolling Thunder and Macraft, noted that it could not
determine whether it has personal jurisdiction over Rolling Thunder
and Macraft. See ECF 67 (Findings and Recommendation) and ECF 68
(Opinion and Order adopting Findings and Recommendation to deny
TLD’s motion for default judgment, with leave to review). TLD, in
seeking leave to file an amended third-party complaint, seeks to
establish the existence of the Court’s personal jurisdiction over Rolling
Thunder and Macraft. Thus, TLD is not acting in bad faith.
Third, nothing indicates that the amendment TLD seeks would be
futile. TLD’s proposed amended third-party complaint and the
accompanying affidavit of Defendant Justin Hardy attempt to establish
the Court’s personal jurisdiction over Rolling Thunder and Macraft. See
ECF 78-1 and 78-2.
Finally, there is no evidence that allowing TLD to amend would
cause undue delay in the proceedings. This case has been pending for
more than a year, and even though the Court recently put in place a
Scheduling Order, the proceedings are still in their preliminary stages.
Allowing the amendment sought would not materially delay the matter
The Court is mindful that “[c]ourts are free to grant a party leave
to amend whenever ‘justice so requires’, Fed. R. Civ. P. 15(a)(2), and
requests for leave should be granted with ‘extreme liberality.’” Moss v.
U.S. Secret Service, 573 F.3d 962, 971 (9th Cir. 2009). Accordingly, and
for all of the foregoing reasons, the Court concludes that the motion to
amend should be granted.
Based on the foregoing, IT IS ORDERED that TLD’s motion for
leave to file an amended third-party complaint (ECF 77) is GRANTED.
TLD shall promptly file its amended pleading.
DATED this 13th day of November, 2015.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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