Prado-Guajardo v. Perez

Filing 31

ORDER that 18 Motion for Leave to File a First Amended Complaint is GRANTED. Plaintiff shall have fourteen days from the filing date of this Order to file her First Amended Complaint. FURTHER ORDERED that 4 Defendant's Motion to Strike is GRANTED. Signed by Chief Judge Gloria M. Navarro on 2/9/17. (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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DEYSSI JANNETH PRADO-GUAJARDO,
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Plaintiff,

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vs.

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MARTIN GUZMAN PEREZ,
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Defendant.

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Case No.: 2:16-cv-00546-GMN-VCF
ORDER

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Pending before the Court is the Motion to Amend the Complaint, (ECF No. 18), filed by

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Plaintiff Deyssi Janneth Prado-Guajardo (“Plaintiff”). Defendant Martin Guzman Perez

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(“Defendant”) filed a Response, (ECF No. 20), and Plaintiff filed a Reply, (ECF No. 22). For

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the reasons discussed below, the Court GRANTS Plaintiff’s Motion to Amend.1

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I.

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BACKGROUND
Plaintiff filed the instant action in state court, seeking damages for an alleged non-

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collision accident. (See Ex. A to Pet. in Removal (“Compl”), ECF No. 1-1). Plaintiff claims

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that “Defendant failed to yield to right of way to Plaintiff Motorcycle,” and “[t]o avoid

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collision with Defendant’s Truck, Plaintiff veered her Motorcycle to the left. Plaintiff was

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ejected from her Motorcycle, slid on the roadway and sustained injuries.” (Id. ¶¶ 8–9). Based

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on these allegations, Plaintiff filed her Complaint in state court asserting claims for negligence

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and negligence per se. (Id.). Defendant removed the case to this Court, citing federal question

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jurisdiction pursuant to 28 U.S.C. § 1331. (See Pet. in Removal, ECF No. 1).

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Also pending before the Court is Defendant’s Motion to Strike, (ECF No. 4), paragraphs thirteen, fourteen, and
fifteen of Plaintiff’s Complaint regarding Wilshire Insurance. Plaintiff failed to file a response to or otherwise
oppose Defendant’s Motion. Accordingly, the Court GRANTS Defendant’s Motion pursuant to Local Rule 72(d). See LR 7-2(d) (“The failure of an opposing party to file points and authorities in response to any motion . . .
constitutes a consent to the granting of the motion.”).

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II.

LEGAL STANDARD

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Federal Rule of Civil Procedure 15(a)(1)(A) allows a party to amend its pleading once as

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a matter of course within 21 days after serving it. Fed. R. Civ. P. 15(a)(1)(A). If the pleading is

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one to which a responsive pleading is required, the party may also amend within “21 days after

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service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or

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(f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(B).

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Once the time period to amend as a matter of course in Rule 15(a)(1) of the Federal

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Rules of Civil Procedure has passed, “a party may amend its pleading only with the opposing

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party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). However, Rule 15(a)(2)

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further instructs that courts “should freely give leave [to amend] when justice so requires.” Id.

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“In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory

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motive on the part of the movant, repeated failure to cure deficiencies by amendments

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previously allowed, undue prejudice to the opposing party by virtue of allowance of the

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amendment, futility of amendment, etc.—the leave sought should, as the rules require, be

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‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962).

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III.

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DISCUSSION
Plaintiff seeks leave to add Defendant’s employer, El Rayo Transportation (“El Rayo”),

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as a defendant. (Mot. to Amend 3:19–25, ECF No. 18). According to Plaintiff, “El Rayo is

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believed to be the name of the company that owned the tractor truck, which defendant . . . was

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driving at the time of the subject incident, and likely was Defendant’s employer at the time.”

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(Id.). Defendant argues that “Plaintiff’s proposed amendment to add El Rayo Transportation as

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a separate defendant is futile” because El Rayo is “not a separate and distinct entity” but

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“simply the name [Defendant] uses in operating his business.” (Resp. 3:18–21, 5:6–7, ECF No.

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20). Further, Defendant asserts that amendment would cause undue prejudice to Defendant

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because “the trier of fact will think that there is a separate corporate entity for which

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[Defendant] was working at the time of this no-contact accident.” (Id. 5:10–11).

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The Court finds that there is more than an adequate basis to grant Plaintiff’s Motion to

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Amend pursuant to Rule 15. First, Plaintiff timely filed her Motion to Amend within the

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deadline set by the Court’s Scheduling Order. (Order 2:12–14, ECF No. 16). In addition,

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amendment would not be futile because it brings parties into the suit against whom Plaintiff has

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colorable claims. Discovery will clarify the relationship between Defendant and El Rayo.

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Further, Defendant fails to explain why a potential misunderstanding by the trier of fact

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amounts to undue prejudice. Defendant does not claim any other grounds for prejudice exist,

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and the Court can see none. The Court therefore GRANTS Plaintiff’s Motion to Amend.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File a First Amended

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Complaint, (ECF No. 18), is GRANTED. Plaintiff shall have fourteen days from the filing

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date of this Order to file her First Amended Complaint.

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IT IS FURTHER ORDERED that Defendant’s Motion to Strike, (ECF No. 4), is
GRANTED.
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DATED this _____ day of February, 2017.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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