Blunt v. United States of America

Filing 26

ORDER Granting 25 Defendant/Counter-Claimant's Unopposed Motion for Leave to Amend Counterclaim. Signed by Magistrate Judge Nancy J. Koppe on 08/01/2013. (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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DON JAY BLUNT,
Plaintiff,

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vs.
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UNITED STATES OF AMERICA,
Defendant.

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UNITED STATES OF AMERICA,
Counterclaim Plaintiff,

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vs.

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DON JAY BLUNT,
Counterclaim Defendant,

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and
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JENNIFER PELLIGRINO (formerly
JENNIFER OLIVAS)
Counterclaim Defendant.

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2:12-cv-2191-RCJ-NJK

ORDER

Before the Court is the United States of America’s Unopposed Motion for Leave to
Amend Counterclaim (#25).
BACKGROUND
On December 24, 2012, Plaintiff Don Jay Blunt filed a Complaint seeking a refund of

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federal income taxes and disputing the Internal Revenue Service’s assessments made against

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Blunt under 26 U.S.C. § 6672. Docket No. 1. On March 1, 2013, the United States filed its

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Answer and Counterclaim against Blunt. Docket No. 8. On March 22, 2013 the United States

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filed its Amended Answer and Counterclaims against Blunt and against Jennifer Olivas. Docket
No. 11. The Amended Answer and Counterclaims against Blunt and against Olivas incorrectly

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identified Olivas’ last name.
On April 2, 2013, Ms. Olivas filed a voluntary petition under Chapter 7 of the Bankruptcy

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Code (11 U.S.C) in the United States Bankruptcy Court of District of Nevada, case No.

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13-12765-bam. Counsel for the United States learned that Olivas’ current last name is Olivas,

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and she was formerly known as Pellegrino, and that the Amended Answer and Counterclaim

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incorrectly identified her as “Pelligrino (formerly Olivas).”

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The Second Amended Answer and Counterclaim differs from the Amended Answer and
Counterclaim only in that it corrects Olivas’ last name.

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DISCUSSION

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“Leave to amend shall be freely given when justice so requires.” Miller v. Rykoff-

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Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988), citing Fed. R. Civ. P. 15(a). “Several factors

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govern the propriety of a motion under rule 15: (1) undue delay, (2) bad faith, (3) futility of

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amendment, and (4) prejudice to the opponent.” Loehr v. Ventura County Community College

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Dist., 743 F.2d 1310, 1319 (9th Cir. 1984), citing Hurn v. Retirement Fund Trust of Plumbing,

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Heating & Piping Indus. S. Cal., 648 F.2d at 1254 (9th Cir. 1981).

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Here, the sole purpose of the unopposed Second Amended Answer is to correct Olivias’

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last name. This correction will not cause undue delay, it is not futile, and it will not prejudice the

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opposition. Additionally, there is no evidence of bad faith. Accordingly, the Court grants leave to

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amend the counterclaim.

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CONCLUSION

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Based on the foregoing, and good cause appearing therefore,

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IT IS HEREBY ORDERED that the United States of America’s Unopposed Motion for

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Leave to Amend Counterclaim (#25) is GRANTED.
DATED this 1st

day of August, 2013

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NANCY J. KOPPE
United States Magistrate Judge
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