Advocare International LP v. Scheckenbach et al

Filing 255

ORDER finding as moot 221 Motion for Extension of Time to Complete Discovery; granting 222 Motion to Amend. Counsel is directed to e-file their Amended Complaint within seven days of the date of this Order. Signed by Judge Ronald B. Leighton.(DN)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 v. RICHARD PAUL SCHECKENBACH, et al., Defendants.

HONORABLE RONALD B. LEIGHTON

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA ADVOCARE INTERNATIONAL, L.P., a Texas limited partnership Plaintiff, Case No. C08-5332 RBL ORDER GRANTING PLAINTIFF'S MOTION TO AMEND [Dkt. #222]

THIS MATTER is before the Court on the Plaintiff's Motion to Amend its Complaint to add attorney

18 Robert Sailer and his law firm as Defendants. Plaintiff claims that recently produced documents demonstrate 19 that Sailer was a co-conspirator in Defendants' alleged scheme to fraudulently secret assets to avoid the Texas 20 Judgment against them. 21 Defendants oppose the Motion, arguing that amendment at this stage of the litigation would be unduly

22 prejudicial, and that the deadline for adding parties passed more than a year ago. Plaintiff argues, and 23 demonstrates, that attorney Sailer's role in the matter was only recently discovered, and argues that any
1 24 prejudice to the parties as the result of amendment can be addressed by adjustments to the trial schedule and

25 date. 26 27 28 Plaintiff also argues, correctly, that the new factual allegations against the existing defendants are the result of newly discovered documents and do not materially change the litigation.
ORDER Page - 1
1

Under Fed. R. Civ. P. 15, this Court must be extremely liberal in considering motions to amend the

1 pleadings. See Price v. Kramer, 200 F.3d 1237, 1250 (9th Cir. 2000), cert. denied, 531 U.S. 816 (2000). The 2 purpose of the rule is to encourage decisions on the merits rather than on the precision (or imprecision, as the 3 case may be) of the pleadings. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 4 In determining whether to grant leave to amend, district courts should look to factors such as "undue

5 delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by 6 amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the 7 amendment, futility of the amendment, etc." Foman v. Davis 371 U.S. 178, 182 (1962). Not all of these 8 factors apply with equal force; "it is the consideration of prejudice to the opposing party that carries the 9 greatest weight." Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 10 The Plaintiff's claim that recently discovered documents have revealed Plaintiff's claims against Sailer

11 appear to be correct. Defendants' contention that the claims could and should have been previously asserted 12 in this litigation, or that Plaintiff can simply assert a separate action against Mr. Sailer, do not persuade the 13 Court that amendment should be denied. A separate claim against Mr. Sailer would be duplicative and 14 inefficient for the partes and the Court. While the trial in this matter is imminent, the addition of a new 15 Defendant at this time would not be unduly prejudicial, as the prejudice can be remedied by amending the trial 16 schedule and setting a new trial date. 17 Therefore, the Motion to Amend the Plaintiff's Complaint [Dkt. #222] is GRANTED, and the Plaintiff

18 shall file the Proposed Amended Complaint within seven days of the date of this Order. The included Motion 19 to Amend the Trial Schedule is similarly GRANTED, and the clerk of the Court is DIRECTED to issue a new 20 trial schedule and set a new trial date. The existing trial date is STRICKEN. 21 It is further ORDERED that Dkt. # 222 shall be SEALED to address the issue raised by Defendants

22 regarding the disclosure of a protected document. 23 It is further ORDERED that Plaintiff's Motion to extend the discovery deadline for depositions

24 pending the Court's Ruling on the Motion to Amend [Dkt. # 221] is DENIED as moot; given the Court's 25 // 26 / 27 28
ORDER Page - 2

1 resolution of the Motion to Amend, the discovery deadline will be extended and the depositions can proceed 2 in any event. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ORDER Page - 3

IT IS SO ORDERED. Dated this 16th of March, 2010.

A

RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE