Bart Street III v. ACC Enterprises, LLC et al

Filing 164

ORDER. IT IS HEREBY ORDERED that 161 Plaintiff's Motion for Leave to Amend is GRANTED. Plaintiff has until 12/7/2018 to file its amended complaint. Signed by Magistrate Judge Cam Ferenbach on 11/30/2018. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BART STREET III, LLC,
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Plaintiff,
2:17-cv-00083-GMN-VCF

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vs.
ACC ENTERPRISES, LLC, et al.,

ORDER

Defendants.

MOTION TO AMEND [ECF NO. 161]

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Before the Court is Plaintiff Bart Street III’s Motion for Leave to Amend. (ECF No. 161). For
the reasons discussed below, Plaintiff’s motion is granted.

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BACKGROUND

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In the original complaint, Plaintiff generally alleges that Defendants ACC Enterprises, ACC

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Industries, and Calvada Partners breached two promissory notes, including the failure to repay the notes.

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(ECF No. 1 at 6-8). The original complaint lists claims for breach of contract, breach of the implied

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covenant of good faith and fair dealing, and unjust enrichment. (Id. at 7-12).

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Plaintiff now moves to amend the complaint based on the Court’s ruling on the parties’ motion

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to dismiss and motion for summary judgment. (ECF No. 161 at 2-3). The proposed amended complaint

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focusses on Defendants’ alleged failure to repay the promissory notes rather than the other breaches listed

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in the original complaint. (ECF No. 161-1). In their response to the motion to amend, Defendants “ do

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not object to Plaintiff seeking or being granted leave to amend the Complaint.” (ECF No. 162 at 2).

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“Defendants merely seek confirmation from the Court that its defenses…remain available and applicable

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moving forward.” (Id at 3).

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ANALYSIS

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“[A] party may amend its pleading only with the opposing party's written consent or the court's

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leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Five factors

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are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue delay,

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prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended

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the complaint.” Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004).

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Plaintiff has shown that the amendment is brought in good faith within the timeline set by the

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Court. (ECF No. 159 at 1). The amendment is not futile and will not prejudice Defendant. The

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amendment is designed to streamline the case, which will assist the parties and Court. In addition, under

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LR 7-2(d), “[t]he failure of an opposing party to file points and authorities in response to any motion…

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constitutes a consent to the granting of the motion.” Therefore, Plaintiff’s motion to amend is granted.

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Defendants seem to be asking the Court for a pre-judgment of the viability of their defenses. The

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Court will not address the merits of Defendants’ potential defenses, as the defenses are not before the

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Court in Plaintiff’s motion to amend. Defendants may raise defenses in their answers to the amended

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complaint as appropriate. See Coppola v. Smith, No. 1:11-CV-1257-AWI-BAM, 2015 WL 2127965, at

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*2-3 (E.D. Cal. May 6, 2015) (discussing answers to amended complaints); see also Sierra Dev. Co. v.

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Chartwell Advisory Grp., No. 13-cv-602-BEN-VPC, 2016 WL 6828200, at *2 (D. Nev. Nov. 18, 2016).

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Accordingly, and for good cause shown,

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IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to Amend (ECF No. 161) is

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GRANTED. Plaintiff has until December 7, 2018 to file its amended complaint.

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DATED this 30th day of November, 2018.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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