Nowell v. Behrends

GUNNISON, District Judge. This matter arises on the motion of plaintiff to file a third amended complaint, having heretofore dismissed as to certain defendants.* To this motion [496] for leave to file a third amended complaint, Behrends,- Corning, Gillespie, and Fairchilds, the only remaining defendants in the case, filed objections, on the ground that the complaint sets up an entirely new and different cause of action from that stated in the original, the amended, and the second amended complaints. The motion for leave to file and the objections were argued at the same time. An examination of the tendered pleading and a comparison with the other pleadings filed in the case makes it clear that the third amended complaint, which plaintiff now desires to file, states a cause of action quite different from that set up in the complaint heretofore filed, and, under section 92 of the Code of Civil Procedure, an amendment to a pleading which substantially changes the cause of action will not be allowed. The motion should be denied. Foste v. Standard Life & Accident Insurance Company, 26 Or. 449, 38 Pac. 617; Baldock v. Atwood, 21 Or. 73, 26 Pac. 1058; Stevenson v. Mudgett, 10 N. H. 338, 34 Am. Dec. 155, and note at page 158 et seq.; Waterman v. Hall, 17 Vt. 128, 42 Am. Dec. 484; McVicker v. Beedy, 31 Me. 314, 50 Am. Dec. 666; Maxwell v. Harrison, 8 Ga. 61, 52 Am. Dec. 385; Henderson v. Louisville, etc., R. R. Co., 123 U. S. 64, 8 Sup. Ct. 60, 31 L. Ed. 92.