Cozumel Leasing, LLC v. International Jets, Inc. et al

Filing 164

ORDER denying 143 Motion to Amend the Amended Complaint signed by Judge Robert J. Bryan. (TC)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 COZUMEL LEASING, LLC, Plaintiff, 10 11 12 13 14 v. CASE NO. 16-5089 RJB ORDER ON MOTION TO AMEND THE AMENDED COMPLAINT INTERNATIONAL JETS INC., a Washington corporation, DAVID KILCUP, an individual, ALDEN ANDRE, an individual, and AIRCRAFT SOLUTIONS LLC, a Washington limited liability company, 15 Defendant. 16 This matter comes before the Court on Plaintiff’s Motion for Leave to Amend Complaint. 17 Dkt. 143. The Court has considered the pleadings filed in support of and in opposition to the 18 motion and the file herein. 19 This case arises out of Plaintiff’s purchase of a 1977 Cessna Citation ISP (“aircraft”) 20 from International Jets, Inc. (“International Jets”) that Plaintiff asserts was not airworthy and 21 required thousands of dollars to repair. Dkts. 1 and 48. Plaintiff now moves for leave to file a 22 second amended complaint. Dkt. 143. For the reasons provided below, the motion (Dkt. 143) 23 should be denied. 24 ORDER ON MOTION TO AMEND THE AMENDED COMPLAINT- 1 1 2 I. BACKGROUND FACTS AND PROCEDURAL HISTORY The background facts are in the April 11, 2018 Order on Motions for Summary Judgment 3 (Dkt. 157, at 2-16), and are adopted here by reference. 4 This case was originally filed in August 21, 2015. Dkt. 1. After voluntarily dismissing some 5 claims with prejudice (Dkt. 118), Cozumel made claims in its Amended Complaint for: (1) 6 negligent misrepresentation against all Defendants; (2) violation of the Washington Consumer 7 Protection Act (“CPA”) against all Defendants, (3) negligence against Aircraft Solutions LLC 8 (“Aircraft Solutions”); (4) breach of contract against International Jet, (5) breach of express and 9 implied warranties against International Jets and Kilcup, (6) breach of fiduciary duty against 10 International Jet and Kilcup, and (7) fraud and fraudulent inducement against International Jet 11 and Kilcup. Dkt. 48. Cozumel seeks damages, costs, and attorney’s fees. Id. 12 On October 19, 2017, on the parties’ stipulated motion, the Court permitted a lengthy 13 extension of the deadline to file dispositive motions (from November 11, 2017 to March 3, 14 2018); the trial date and other pre-trial motions’ deadlines were also reset. Dkt. 94. This was the 15 parties’ second motion for an extension of the case deadlines. Dkt. 90. 16 The parties timely filed cross motions for summary judgment (Dkts. 101, 107, 110, and 17 112). On April 11, 2018, Defendant Alden Andre’s motion for summary dismissal of all claims 18 asserted against him was granted; and the summary judgment motions of Plaintiff, International 19 Jets, David Kilcup, and Aircraft Solutions were granted, in part, and denied, in part. Dkt. 157. 20 Plaintiff’s claims for negligent misrepresentation and negligence against Defendant Aircraft 21 Solutions and claims for breach of contract and breach of express and implied warranties against 22 International Jets and Kilcup remain for trial. 23 24 ORDER ON MOTION TO AMEND THE AMENDED COMPLAINT- 2 1 After the above mentioned cross motions for summary judgment were filed, but were not 2 yet ripe for consideration, Plaintiff filed the instant motion for leave to amend his amended 3 complaint. As a basis for its negligent misrepresentation, fraud and fraudulent inducement 4 claims against International Jets and Kilcup, Cozumel seeks to add Kilcup’s representation to 5 David Fallang (Cozumel’s representative), that Aircraft Solutions was a Sierra Industries, Inc. 6 certified repair shop. Dkt. 143. All Defendants oppose the motion. Dkts. 154 and 156. Plaintiff 7 reply (Dkt. 160) was timely filed after the order on the motions for summary judgment (Dkt. 8 157) was issued. 9 Motions in limine and the pretrial order have been filed. Dkts. 140, 142 and 161. The 10 case is set to go to trial in less than a month - on May 14, 2018. 11 12 II. DISCUSSION Under the rule of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), federal courts sitting in 13 diversity jurisdiction, as is the case here, apply state substantive law and federal procedural law. 14 Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996). 15 A. STANDARD FOR MOTION TO AMEND COMPLAINT 16 Under Fed. R. Civ. P. 15 (a)(2), “a party may amend its pleading only with the opposing 17 party’s written consent or the court's leave. The court should freely give leave when justice so 18 requires.” A motion to amend under Rule 15 (a)(2), “generally shall be denied only upon 19 showing of bad faith, undue delay, futility, or undue prejudice to the opposing party.” Chudacoff 20 v. University Medical Center of Southern Nevada, 649 F.3d 1143 (9th Cir. 2011). 21 B. MOTION TO AMEND 22 Plaintiff’s motion for leave to amend complaint (Dkt. 143) should be denied. Plaintiff’s 23 motion was filed with undue delay and is futile. Plaintiff’s motion was filed late in the process – 24 ORDER ON MOTION TO AMEND THE AMENDED COMPLAINT- 3 1 it is just four weeks before trial is set to start. The motion was filed two months after Alden 2 Andre’s January 24, 2018 testimony, upon which the proposed amendment is allegedly based. 3 Further, the motion is futile as to the negligent misrepresentation, fraud, and fraudulent 4 inducement claims for the reasons provided in the order on the motions for summary judgment 5 (Dkt. 157, at 21 and 32). Plaintiff’s motion for leave to file a second amended complaint (Dkt. 6 143) should be denied. 7 8 9 10 III. ORDER Therefore, it is hereby ORDERED that:  Plaintiff’s Motion for Leave to Amend Complaint (Dkt. 143) IS DENIED. The Clerk is directed to send uncertified copies of this Order to all counsel of record and 11 to any party appearing pro se at said party’s last known address. 12 Dated this 16th day of April, 2018. 13 A 14 ROBERT J. BRYAN United States District Judge 15 16 17 18 19 20 21 22 23 24 ORDER ON MOTION TO AMEND THE AMENDED COMPLAINT- 4

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