Chemeon Surface Technology, LLC vs Metalast International, Inc, et al

Filing 347

ORDER granting ECF No. 242 Chemeon's Motion for Leave to File Second Amended Complaint; parties to file a status report within (10) days re whether amendment will affection arguments in Chemoeon's pending MSJ ECF No. 315 . Signed by Judge Miranda M. Du on 10/25/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CHEMEON SURFACE TECHNOLOGY,
LLC,

Case No. 3:15-cv-00294-MMD-VPC
ORDER

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Plaintiff,
v.

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METALAST INTERNATIONAL, INC. et al.,
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Defendants.
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AND RELATED CLAIMS

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Before the Court is Plaintiff/Counter Defendant Chemeon Surface Technology,

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LLC’s (“Chemeon”) Motion for Leave to File Second Amended Complaint (“Motion”).

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(ECF No. 242.) Chemeon seeks leave to amend to assert two claims and add

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allegations based on information obtained through discovery in September 2016 relating

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to David M. Semas’ trademark registration renewal filed with the United States Patent

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and

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Counterclaimants have opposed (ECF No 255) and Chemeon has replied (ECF No.

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264).

Trademark

Office

(“USPTO”)

in

July

2015.

(Id.

at

4-5.)

Defendants/

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Once a responsive pleading has been filed, “a party may amend its pleading only

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with the opposing party's written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

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“The court should freely give leave when justice so requires.” Id. “The decision of

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whether to grant leave to amend nevertheless remains within the discretion of the

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district court, which may deny leave to amend due to ‘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, [and] futility of amendment.’” Leadsinger, Inc. v. BMG Music Publ’g, 512

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F.3d 522, 532 (9th Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

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However, “[u]ndue delay by itself is insufficient to justify denying leave to amend.”

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United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir. 2016) (citing

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Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712–13 (9th Cir. 2001)).

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Defendants argue that amendment would result in undue prejudice to them

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because while Chemeon represents that it will not request additional discovery,

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Defendants “certainly need discovery to find exculpatory evidence.” (ECF No. 255 at 7.)

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However, Defendants do not identify what additional discovery they would need. Nor do

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they clarify why they would need discovery when information relating to Semas’

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trademark registration renewal would presumably be in Semas’ possession, eliminating

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the need for further discovery.

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The Court agrees with Chemeon that leave to amend should be granted under

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the circumstances here where the claims asserted should reflect the information

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obtained through discovery and where Defendants are not unduly prejudice by virtue of

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the Court granting amendment. The Court will therefore grant Chemeon leave to

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amend.

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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Motion.
It is therefore ordered that Chemeon’s Motion for Leave to File Second Amended

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Complaint (ECF No. 242) is granted.

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It is further ordered that the parties file a status report within ten (10) days to

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update the Court on whether amendment will affect the arguments presented in

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Chemeon’s pending motion for summary judgment (ECF No. 315).

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DATED THIS 25th day of October 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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