V'Guara Inc. v. Steve Dec et al

Filing 69

ORDER that 68 Motion to Amend/Correct 43 Answer to Complaint, Counterclaim is GRANTED. Defendant shall file the amended counterclaims within 10 days of this order. Signed by Magistrate Judge Nancy J. Koppe on 2/10/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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V’GUARA, INC.,

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Plaintiff(s), )
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vs.
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STEVE DEC, et al.,
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Defendant(s). )
__________________________________________)

Case No. 2:13-cv-0076-JAD-NJK
ORDER GRANTING MOTION FOR
LEAVE TO AMEND
(Docket No. 68)

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Pending before the Court is Defendant Steve Dec’s motion for leave to file amended counterclaims

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to add a counter-defendant, filed on January 21, 2014. Docket No. 68. No opposition has been filed. The

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Court finds the motion properly decided without oral argument. See Local Rule 78-2. For the reasons

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discussed below, the Court the motion is hereby GRANTED.

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

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there is a strong public policy in favor of permitting amendment. Bowles v. Reade, 198 F.3d 752, 757 (9th

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Cir. 1999). As such, the Ninth Circuit has made clear that Rule 15(a) is to be applied with “extreme

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liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). In deciding a

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motion for leave to amend, the court considers five factors: (1) bad faith; (2) undue delay; (3) prejudice to

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the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended the

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complaint. United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). “Absent prejudice,

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or a strong showing of any of the remaining . . . factors, there exists a presumption under Rule 15(a) in

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favor of granting leave to amend.” Eminence Capital, 316 F.3d at 1052 (emphasis in original).

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Defendant’s motion seeks leave to amend his counterclaims to add Mirek Wierzbowski as a

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counter-defendant. See Docket No. 68 at 2. Mr. Wierzbowski is an officer and director of Plaintiff. See

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id. As such, Defendant argues that Mr. Wierzbowski has had notice of this case and will not be prejudiced

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by being added as a counter-defendant. See id. at 3. Indeed, the record bears out that Mr. Wierzbowski has

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been actively involved in litigating this case. See Docket No. 8, Exh. 1 (declaration of Mirek Wierzbowski

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in support of motion for temporary restraining order). In evaluating the factors above and in recognition

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of the “extreme liberality” with which Rule 15(a) is to be applied, the Court finds that the counterclaims

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can be amended to add Mr. Wierzbowski as a counter-defendant.1

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Accordingly, the motion for leave to amend the counterclaims is hereby GRANTED. Defendant
shall file the amended counterclaims within 10 days of this order.

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IT IS SO ORDERED.

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Dated: February 10, 2014

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________________________________________
NANCY J. KOPPE
UNITED STATES MAGISTRATE JUDGE

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Although futility is a relevant factor for consideration, nothing herein shall be construed as
precluding Mr. Wierzbowski from filing a motion to dismiss. Cf. Branch Banking & Trust Co. v. Pebble
Creek Plaza, LLC, 2013 U.S. Dist. Lexis 72732, *3 (D. Nev. May 22, 2013) (collecting cases regarding
deferring challenges to the merits of a proposed amendment until after leave to amend is granted).
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