Branch Banking and Trust Company v. Pebble Creek Plaza, LLC et al

Filing 25

ORDER Granting 22 Defendants' Motion to to File a Second Amended Answer and Counterclaim. D.M.S.I., LLC, Yoel Iny, Yoel Iny(Trustee), Pebble Creek Plaza, LLC, Noam Schwartz(Trustee), and Noam Schwartz Second Amended Answers due within 14 days of this order. Signed by Magistrate Judge Nancy J. Koppe on 05/22/2013. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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BRANCH BANKING & TRUST CO.,

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Pending before the Court is Defendants’ motion for leave to file a second amended answer

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and counterclaim. Docket No. 22. Plaintiff filed a response and Defendants filed a reply. Docket

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Nos. 23, 24. The Court finds this matter properly resolved without oral argument. Local Rule 78-2.

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For the reasons stated below, the Court hereby GRANTS Defendants’ motion.

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Plaintiff(s),
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vs.
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PEBBLE CREEK PLAZA, LLC, et al.,
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Defendant(s).

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Case No. 2:12-cv-01737-GMN-NJK
ORDER GRANTING MOTION TO
AMEND
(Docket No. 22)

Under Fed. R. Civ. P. 15(a), “[t]he court should freely give leave when justice so requires,”

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and there is a strong public policy in favor of permitting amendment. Bowles v. Reade, 198 F.3d

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752, 757 (9th Cir. 1999). As such, the Ninth Circuit has made clear that Rule 15(a) is to be applied

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with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.

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2003). In deciding a motion for leave to amend, the court considers five factors: (1) bad faith; (2)

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undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the

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plaintiff has previously amended the complaint. United States v. Corinthian Colleges, 655 F.3d 984,

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995 (9th Cir. 2011). “Absent prejudice, or a strong showing of any of the remaining . . . factors,

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there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence

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Capital, 316 F.3d at 1052 (emphasis in original).

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Plaintiff opposes the motion almost entirely on the argument that amending the answer to

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add the counterclaims will be futile because they would not survive a motion to dismiss. See

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Response at 4-8.1 “Denial of leave to amend on this ground is rare. Ordinarily, courts will defer

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consideration of challenges to the merits of a proposed amendment until after leave to amend is

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granted and the amended pleading is filed.” Netbula, LLC v. Distinct Corp., 212 F.R.D. 534, 539

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(N.D. Cal. 2003); see also Abels v. JBC Legal Group, P.C., 229 F.R.D. 152, 157 (N.D. Cal. 2005).

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Deferring ruling on the sufficiency of the proposed amended pleadings is especially appropriate “[i]n

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view of Rule 15(a)’s permissive standard.” Velasco v. SEI Pharms., Inc., 2013 WL 310336, *2

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(S.D. Cal. Jan. 25, 2013) (quoting Hynix Semiconductor Inc. v. Toshiba, 2006 WL 3093812, *2

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(N.D. Cal. Oct. 31, 2006) and collecting cases).

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Accordingly, the motion for leave to amend is GRANTED. The Second Amended Answer
and Counterclaim shall be filed within 14 days of this Order.

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IT IS SO ORDERED.

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DATED: May 22, 2013

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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Plaintiff also states in a single sentence in a footnote that there has been undue delay. See
Response at 3 n.1. The Court finds this bare assertion unpersuasive. Accordingly, the Court concludes
that there is no undue delay, bad faith or prejudice.
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