Gordon v. Impulse Marketing Group Inc

Filing 481

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO AMEND re 417 Motion to Amend Complaint. Signed by Judge Fred Van Sickle. (SAP, Case Administrator)

Gordon v. Impulse Marketing Group Inc

Doc. 481

Case 2:04-cv-05125-FVS

Document 481

Filed 05/10/2007

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

JAMES S. GORDON, No. CV-04-5125-FVS Plaintiff, v. IMPULSE MARKETING, INC., JEFFREY GOLDSTEIN, PHILLIP HUSTON, and KENNETH ADAMSON, Defendants. ORDER GRANTING IN PART AND DENYING IN PART MOTION TO AMEND

THIS MATTER comes before the Court on the Plaintiff's Motion to Amend Complaint, Ct. Rec. 417. J. Siegal. The Plaintiff is represented by Robert

The Defendants are represented by Floyd Ivey, Sean A.

Moynihan, and Peter Glantz. BACKGROUND The Plaintiff initiated the present lawsuit on November 23, 2004. On March 29, 2006, the Plaintiff sought permission to amend the Complaint to include additional claims. (Ct. Rec. 313.) The

Plaintiff also sought to add additional defendants, Jeffrey Goldstein, Kenneth Adamson, and Phillip Huston, officers and/or directors of Defendant Impulse. On May 2, 2006, the Court granted the Plaintiff

leave to amend the complaint to include the additional claims and Defendants, but denied his request to name an additional party plaintiff. (Ct. Rec. 356).

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The Plaintiff filed his First Amended Complaint ("FAC") on June 13, 2006. One of the new claims asserted in the FAC is a claim under The Prize Statute claim in the FAC does

Washington's Prize Statute. not allege damages.

The Plaintiff also amended the case caption in

the FAC to identify the Plaintiff as, "James S. Gordon, Jr., a married individual d/b/a `gordonworks.com,'" rather than "James S. Gordon, an individual residing in Benton County, Washington." On August 31, 2006, the Defendants filed a second motion to dismiss, arguing that dismissal of the FAC is appropriate on a number of grounds. Three of these arguments are relevant to the Plaintiff's First, the Defendants argue that the vagueness of

motion to amend.

the FAC makes it impossible for them to file a meaningful response. (Ct. Rec. 404 at 14-17.) Second, the motion to dismiss argues that

the Plaintiff improperly added gordonworks.com as a party without seeking leave of the Court. Finally, the Defendants seek dismissal of

the Prize Statute claim based on the Plaintiff's failure to plead damages. Without seeking leave of the Court, the Plaintiff filed a Second Amended Complaint ("SAC"), Ct. Rec. 448-3, along with their response to the motion to dismiss. significant respects. from the case caption. The SAC differs from the FAC in two

First, the SAC removes "d/b/a gordonworks.com" Second, the SAC includes three paragraphs

concerning the Plaintiff's Prize Statute claim that were not in the FAC. Paragraphs 4.3.3 and 4.3.4 provide more specific factual Paragraph 4.3.5

allegations concerning the Prize Statute claim.

alleges that the Plaintiff suffered damages as a result of the Prize

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Statute violations.

The other changes in the SAC are minor, adding

phrases from the relevant statutes to the Plaintiff's allegations. The Defendants objected to the SAC as an unauthorized pleading. (Ct. Rec. 414.) The Plaintiff now seeks leave to amend the complaint

by filing the SAC. DISCUSSION Under the Federal Rules of Civil Procedure, a party may amend its pleadings only with leave of the court once a responsive pleading has been served. Fed. R. Civ. P. 15(a). Courts should grant permission Id. However, a

to amend pleadings "freely when justice so requires."

court need not grant leave to amend when the proposed amendment would prejudice the opposing party, is sought in bad faith, would produce an undue delay in the litigation, or would be futile. AmerisourceBergen

Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006)(citing Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). The court may also deny leave to amend where the moving party

knew of the facts it wishes to allege in the proposed amendment at the time of the original complaint and failed to include them. Boeing Co., 843 F.2d 1213, 1222 (9th Cir. 1988). Under the circumstances of this case, justice does not require the Court to grant the Plaintiff leave to amend the pleadings by filing the SAC. The Plaintiff has disregarded both an order of this As the EEOC v.

Court and Rule 15 of the Federal Rules of Civil Procedure.

Defendants observe, the Plaintiff amended the caption of the FAC in direct contravention of this Court's May 2, 2006 order. The Plaintiff

then filed the SAC without seeking permission from the Court.

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Moreover, permitting the Plaintiff to file the SAC would largely be futile, as the majority of the changes in the SAC do not cure any of the deficiencies observed by the Defendants. With the exception of

the new paragraphs concerning the Prize Statute claim, the new language in the SAC consists of conclusory allegations that mirror the language of the governing statutes. Such language does nothing to

protect a claim from dismissal on a 12(b)(6) motion, as a court ruling upon a 12(b)(6) motion need not "assume the truth of legal conclusions cast in the form of factual allegations." F.3d 1191, 1200 (9th Cir. 2003). However, the Court will permit the Plaintiff to amend the FAC by adding Paragraphs 4.3.3, 4.3.4, and 4.3.5 of the SAC to Section 4.3 of the FAC. This change will not prejudice the Defendants, as the FAC Ileto v. Glock Inc., 349

gave them notice that the Plaintiff intended to pursue a claim under the Prize Statute. Nor will including these paragraphs in the Paragraphs 4.3.3 and 4.3.4 will give the Paragraph

complaint prove futile.

Defendants additional notice of the Plaintiff's claim.

4.3.5 will serve to allege damages, a necessary element of the Prize Statute claim. The Court being fully advised,

IT IS HEREBY ORDERED 1. The Plaintiff's Motion to Amend Complaint, Ct. Rec. 417, is GRANTED IN PART and DENIED IN PART. 2. The Plaintiff may not file his proposed Second Amended Complaint. 3. The Plaintiff may amend Section 4.3 of the First Amended Complaint to include paragraphs 4.3.3, 4.3.4, and 4.3.5 of his

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proposed Second Amended Complaint. IT IS SO ORDERED. The District Court Executive is hereby

directed to enter this order and furnish copies to counsel. DATED this 10th day of May, 2007. s/ Fred Van Sickle Fred Van Sickle United States District Judge

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