Eisenstecken v. Tahoe Regional Planning Agency

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA — 10 — 11 MONICA EISENSTECKEN, et al., No. 2:20-cv-02349-TLN-CKD 12 Plaintiffs, 13 v. ORDER 14 TAHOE REGIONAL PLANNING AGENCY, et al., — 15 — Defendants. — 16 — — 17 — 18 This action is before the Court on Plaintiffs Monica Eisenstecken (“Eisenstecken”); Tahoe 19 Stewards, LLC; Tahoe for Safer Tech; and Environmental Health Trust’s (collectively, 20 “Plaintiffs”), Motion for Leave to Amend the Complaint. (ECF No. 29.) Defendants 21 Sacramento-Valley Limited Partnership, d/b/a/ Verizon Wireless (“Verizon”); Guilliam Nel; 22 Tahoe Regional Planning Agency (“TRPA”); Sue Novasel; Marsha Berkbigler; and Joanne 23 Marchetta (collectively, “Defendants”) opposed Plaintiffs’ motion. (ECF No. 36.) Plaintiffs filed 24 a reply. (ECF No. 39.) For the reasons set forth below, the Court GRANTS Plaintiffs’ Motion for 25 Leave to Amend the Complaint (ECF No. 29.) Also pending before the Court are two motions to 26 dismiss, (ECF Nos. 12, 16), which the Court DENIES as moot. 27 /// — 28 — 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiffs initiated this action on November 24, 2020, (ECF No. 1), and filed a First 3 Amended Complaint (“FAC”) as a matter of right on December 10, 2020. (ECF No. 5.) 4 Plaintiffs’ FAC alleges TRPA licenses telecom companies to build cell towers which allegedly 5 blanket the Lake Tahoe (“Tahoe”) region in Radiofrequency Radiation (“RFR”), without any 6 consideration or assessment of the risks to Tahoe’s unique environment, the increased fire hazard, 7 and the danger from increased and untested RFR exposures to thousands of Tahoe residents. 8 (ECF No. 5 at 3.) Plaintiffs bring thirteen causes of action against Defendants. (See generally 9 id.) 10 On May 11, 2021, Plaintiffs filed the instant Motion for Leave to Amend the Complaint, 11 seeking leave to add a new plaintiff, David Benedict, and a new defendant, City of South Lake 12 Tahoe, to the complaint. (ECF No. 29 at 2–3.) Defendants filed an opposition on June 10, 2021. 13 (ECF No. 36.) Plaintiffs replied on June 17, 2021. (ECF No. 39.) 14 II. STANDARD OF LAW 15 Granting or denying leave to amend a complaint rests in the sound discretion of the trial 16 court. Swanson v. U.S. Forest Serv., 87 F.3d 339 , 343 (9th Cir. 1996). When the Court issues a 17 pretrial scheduling order that establishes a timetable to amend the complaint, Federal Rule of 18 Civil Procedure (“Rule”) 16 governs any amendments to the complaint. Coleman v. Quaker Oats 19 Co., 232 F.3d 1271, 1294 (9th Cir. 2000). To allow for an amendment under Rule 16, a plaintiff 20 must show good cause for not having amended the complaint before the time specified in the 21 pretrial scheduling order. Id. The good cause standard primarily considers the diligence of the 22 party seeking the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th 23 Cir. 1992). “Moreover, carelessness is not compatible with a finding of diligence and offers no 24 reason for a grant of relief.” Id. The focus of the inquiry is on the reasons why the moving party 25 seeks to modify the complaint. Id. If the moving party was not diligent, good cause cannot be 26 shown, and the inquiry should end. Id. 27 Even if the good cause standard is met under Rule 16(b), the Court has the discretion to 28 refuse amendment if it finds reasons to deny leave to amend under Rule 15(a). Id. at 608 (citing 1 Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 1987.) Under Rule 15(a)(2), “a party may 2 amend its pleading only with the opposing party’s written consent or the court’s leave,” and the 3 “court should freely give leave when justice so requires.” The Ninth Circuit has considered five 4 factors in determining whether leave to amend should be given: (1) bad faith; (2) undue delay; (3) 5 prejudice to the opposing party; (4) futility of amendment; and (5) whether plaintiff has 6 previously amended his complaint. In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 7 716, 738 (9th Cir. 2013) (quoting Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 8 1990)). “[T]he consideration of prejudice to the opposing party carries the greatest weight.” 9 Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 10 III. ANALYSIS 11 Plaintiffs request the Court allow them to file a second amended complaint to add a new 12 plaintiff, David Benedict (“Benedict”), and a new defendant, City of South Lake Tahoe (“City”) 13 to the action, and to amend the first amended complaint (“FAC”). (ECF No. 29 at 2–3.) The 14 proposed second amended complaint (“Proposed SAC”) asserts the following new or revised 15 claims: (1) a variety of statutory and tort claims based on the alleged effects of a small cell 16 wireless facility near Benedict’s residence (“Existing Small Cell Facility”) (ECF No. 29-2 at ¶¶ 8, 17 23, 74–79, 123, 129, 136–137, 153–190); (2) new factual allegations to support the seventh cause 18 of action for conflicts of interest and violation of California open-meeting laws (id. at ¶¶ 111– 19 127); (3) a claim that a special use permit for a proposed wireless facility (“Proposed Cell 20 Facility”) issued by proposed new defendant, City, has expired and is null and void (id., ¶¶ 50– 21 68); and (4) claims that City has violated the Americans with Disabilities Act (“ADA”), the Fair 22 Housing Act (“FHA”), and committed various torts against Eisenstecken and Benedict by 23 approving the Existing Small Cell Facility and the Proposed Cell Facility and refusing to rescind 24 those approvals (id. at ¶¶ 75, 78–79, 129–30, 133, 135, 137–38, 153–75). 25 Defendants oppose Plaintiffs’ request for five main reasons: (1) Plaintiffs’ motion fails 26 because they do not expressly seek leave to modify the scheduling order; (2) Plaintiffs failed to 27 meet the “good cause” standard required under Rule 16; (3) Plaintiffs failed to meet the “same 28 transaction” and commonality requirements under Rule 20 for permissive joinder; (4) any 1 amendment would be futile; and (5) amendment would prejudice Defendants. (See ECF No. 36.) 2 The Court will address Defendants’ arguments in turn. 3 A. No Motion to Modify Scheduling Order 4 Defendants argue the instant motion should be denied because Plaintiffs improperly 5 moved to amend without a motion to modify the pretrial scheduling order, as required by Rule 6 16(b). (ECF No. 36 at 6–7.) In reply, Plaintiffs argue the motion to modify the pretrial 7 scheduling order is implicit in the instant motion to amend the FAC. (ECF No. 39 at 4.) 8 Plaintiffs incorrectly move under Rule 15(a). (ECF No. 29 at 2.) However, a pretrial 9 scheduling order is in place, and the Court will construe Plaintiffs’ motion under Rule 16(b) as a 10 motion to modify the pretrial scheduling order to permit the filing of an amended complaint. See, 11 e.g., Hood v. Hartford Life & Acc. Ins. Co., 567 F. Supp. 2d 1221 , 1223 n.2 (E.D. Cal. 2008) 12 (construing the plaintiff’s motion to amend the complaint as a Rule 16(b) motion to modify the 13 scheduling order where a pretrial scheduling order had already been entered); see also Williams 14 ex rel Williams v. City of Weed, No. 2:07-CV-1787-FCD-EFB, 2008 WL 4570657 , at *1, n.2 15 (E.D. Cal. Oct. 14, 2008) (same). 16 B. Good Cause 17 Plaintiffs seek to add a new plaintiff, Benedict, and a new defendant, City, to the 18 litigation. (ECF No. 29 at 2–3.) On April 6, 2021, Benedict retained Plaintiffs’ counsel to 19 represent him. (Id. at 2.) In opposition, Defendants argue Plaintiffs made “no attempt to show 20 good cause to amend the schedule” as required under Rule 16. (ECF No. 36 at 7.) Defendants 21 argue Plaintiffs cannot make the required showing because the new claims are based on facts that 22 were known to Plaintiffs before filing the action. (Id. at 8.) In reply, Plaintiffs argue their motion 23 meets the Rule 16(b)(4) “good cause” requirement because Plaintiffs “moved for [l]eave to 24 [a]mend as soon as humanly possible after [Benedict] retained Plaintiffs’ counsel.” (ECF No. 39 25 at 6.) 26 As the Ninth Circuit explained in Johnson, once the district court has filed a pretrial 27 scheduling order pursuant to Rule 16 which establishes a timetable for amending pleadings, a 28 motion seeking to amend pleadings is governed first by Rule 16(b), and only secondarily by Rule 1 15(a). See Johnson, 975 F.2d at 607–08 (citing Forstmann, 114 F.R.D. at 85 .) “If [the court] 2 considered only Rule 15(a) without regard to Rule 16(b), [it] would render scheduling orders 3 meaningless and effectively would read Rule 16(b) and its good cause requirement out of the 4 Federal Rules of Civil Procedure.” Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 5 1999) (citing Sosa v. Airprint Systems., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998).) Whether 6 Plaintiffs should be granted leave to amend FAC depends first upon whether they can satisfy their 7 burden of showing that “good cause” justifies amendment of the Rule 16 Order. See Johnson, 8 975 F.2d at 608–09. 9 When the proposed modification is an amendment to the pleadings, the moving party may 10 establish good cause by showing “(1) that [he or she] was diligent in assisting the court in 11 creating a workable Rule 16 order; (2) that [his or her] noncompliance with a rule 16 deadline 12 occurred or will occur, notwithstanding [his or her] diligent efforts to comply, because of the 13 development of matters which could not have been reasonably foreseen or anticipated at the time 14 of the Rule 16 scheduling conference; and (3) that [he or she] was diligent in seeking amendment 15 of the Rule 16 order, once it became apparent that [he or she] could not comply with the order.” 16 Jackson, 186 F.R.D. at 608 (citations omitted). 17 Here, Plaintiffs sufficiently satisfy all factors of the good cause analysis. The deadline to 18 amend the complaint and add parties was April 12, 2021. (ECF No. 36 at 4.) On April 6, 2021, 19 Benedict decided to retain Plaintiffs’ counsel and join the lawsuit as a named plaintiff. On April 20 9, 2021, Plaintiffs’ counsel conferred with Defendants asking for a stipulation of amendment to 21 allow the addition of Benedict. (ECF No. 29 at 2; see also ECF No. 29-1 at 4.) Defendants 22 refused stipulation of amendment. (ECF No. 29-1 at 4.) On April 12, 2021, Plaintiffs filed a 23 motion to extend time to respond to the Defendants’ Motions to Dismiss on the grounds that 24 Plaintiffs were going to seek leave to add Benedict and amend the FAC. (See ECF No. 23.) 25 Approximately one month later, on May 11, 2021, Plaintiffs filed the instant motion to amend. 26 (See ECF No. 29.) 27 Plaintiffs sufficiently discharged their duty to assist the Court in fashioning a Rule 16 28 order by alerting the Court of the intention to amend on April 12, 2021. (See ECF No. 23.) 1 Benedict’s decision to retain counsel was a “matter which could not have been reasonably 2 foreseen or anticipated at the time of the Rule 16 scheduling conference.” See Jackson, 186 3 F.R.D. at 608. The Court finds Plaintiffs acted diligently in seeking amendment once it became 4 apparent on April 9, 2020, Defendants would not stipulate to the amendment and Plaintiffs could 5 not comply with the scheduling order. Plaintiffs diligently sought stipulation from opposing 6 counsel and diligently advised the Court of their intention to amend the FAC. (ECF Nos. 29-1 at 7 4; ECF No. 23.) Accordingly, the Court finds Plaintiffs were reasonably diligent and satisfy Rule 8 16’s good cause standard. 9 C. Rule 20 10 Plaintiffs argue Benedict’s claims “arise out of the same common nucleus of facts as give 11 rise to the claims of the original Plaintiffs, which is why the interests of judicial economy are best 12 served by adding him as a Plaintiff in this action.” (ECF No. 29 at 3.) In opposition, Defendants 13 argue Plaintiffs’ motion should be denied because Benedict’s claims and the existing claims are 14 not based on the same transaction or occurrence. (ECF No. 36 at 8–9.) Defendants state 15 Benedict’s claims are based on the Existing Small Cell Facility, a small cell facility that was built 16 and approved three years ago, while the FAC currently alleges claims arising from the Proposed 17 Cell Facility, which is still pending and has not received approval. (ECF No. 36 at 9.) 18 Additionally, Defendants argue the existing claims focus on the actions of TRPA, while the 19 proposed amendment would add claims against a different permitting agency, City, “which 20 operates under different laws, with a different mandate, and has a different legal status.” (Id.) In 21 reply, Plaintiff argues Benedict is merely joining existing claims against TRPA and the Proposed 22 Cell Facility. (ECF No. 39 at 7.) However, in addition to bringing identical claims regarding the 23 Proposed Cell Facility, Benedict also asserts unique claims against Verizon, TRPA, and City 24 arising from injuries and damages from the Existing Small Cell Facility. (Id.) Plaintiffs argue the 25 additional unique claims serve to “bolster the overall claims against TRPA[,]” by demonstrating 26 the impact of TRPA’s disregard for its obligations under the Tahoe Regional Planning Compact. 27 (Id.) Plaintiffs additionally argue denial of the motion would require Benedict to file an 28 independent action, wasting considerable judicial resources. (Id.) 1 Permissive joinder is to be liberally construed in order to promote trial convenience and to 2 expedite the final determination of disputes, thereby preventing multiple lawsuits. Cuprite Mine 3 Partners LLC v. Anderson, 809 F.3d 548, 552 (9th Cir. 2015). The purpose of Rule 20(a) is to 4 address the “broadest possible scope of action consistent with fairness to the parties; joinder of 5 claims, parties and remedies is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383 6 U.S. 715 , 724 (1966). Rule 20(a) permits joinder in a single action of all persons asserting, or 7 defending against, a joint, several, or alternative right to relief that arises out of the same 8 transaction or occurrence and presents a common question of law or fact. Fed. R. Civ. P. 20(a); 9 see League to Save Lake Tahoe v. Tahoe Regl. Plan. Agency, 558 F.2d 914 , 917 (9th Cir. 1977). 10 The first prong, the “same transaction” requirement, refers to similarity in the factual 11 background of a claim. Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). Courts assess 12 the facts of each case individually to determine whether joinder is sensible in light of the 13 underlying policies of permissive party joinder. See id. Although there might be different 14 occurrences, where the claims involve enough related operative facts, joinder in a single case may 15 be appropriate. Accordingly, all “logically related” events entitling a person to institute a legal 16 action against another generally are regarded as comprising a transaction or occurrence. See 17 Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974) (citing 7 Charles Alan Wright, 18 et al., Federal Practice and Procedure § 1653 at 270 (1972)). 19 The second prong of the joinder test addresses commonality. Commonality under Rule 20 20(a)(1)(B) is not a particularly stringent test. See Robinson v. Geithner, No. 1:05-cv-0125821 LJO-SKO, 2011 WL 66158 , at *5 (E.D. Cal. Jan. 10, 2011). The Rule requires only a single 22 common question, not multiple common questions. See Fed. R. Civ. P. 20. Further, the common 23 question may be one of fact or of law and need not be the most important or predominant issue in 24 the litigation. See Mosley, 497 F.2d at 1333 . 25 i. Same Transaction 26 Defendants make much of the Proposed SAC’s new allegations involving injuries from 27 the Existing Cell Facility. (ECF No. 36 at 9.) Defendants argue the allegations cannot be based 28 on the “same transaction” as the claims in the FAC, because those claims were based on the 1 Proposed Cell Facility, which is “merely being proposed and has not yet received final approval.” 2 (Id.) This might be true with respect to causes of action 9–13, however, causes of action 1–8 are 3 challenges to TRPA’s failure to follow the obligations imposed upon them by the Tahoe Regional 4 Planning Compact, its own regional plan, and several state and federal laws. (Id. at 17–29.) 5 The Court finds Plaintiffs’ allegations in the Proposed SAC, regarding Benedict’s claims 6 against TRPA, Verizon Wireless, and other individual defendants, are sufficiently “logically 7 related” and sufficiently similar to the background facts of this case to comprise a singular 8 “transaction” under Rule 20. Benedict’s claims similarly arise from TRPA’s allegedly systematic 9 and defective procedure for approving and permitting wireless infrastructure, in violation of the 10 Tahoe Regional Planning Compact, the regional plan, and various state and federal laws. 11 The Court finds the addition of the proposed City defendant similarly meets “same 12 transaction” requirements under Rule 20. Defendants argue the Proposed SAC would add claims 13 against City, “which operates under different laws, with a different mandate, and has a different 14 legal status.” (ECF No. 36 at 9.) According to Plaintiffs, City is a permitting agency for both the 15 Existing Small Cell Facility and the Proposed Cell Facility, which are both subject to TRPA’s 16 allegedly systematic and deficient approval process. (ECF No. 39 at 8.) Such claims against City 17 are sufficiently logically related to the existing allegations against TRPA and other defendants 18 allegedly responsible for facilitating the installation of the controversial cell towers. The 19 proposed SAC also includes allegations that City issued a conditional-use permit to Defendant 20 Verizon for the Proposed Cell Facility, and now a controversy exists about whether the permit has 21 expired by its own terms. (ECF No. 29-2 at 30–31.) This is logically related to existing claims 22 against TRPA, Verizon, and other defendants relating to the Proposed Cell Facility. 23 ii. Commonality 24 Permissive joinder of parties under Rule 20 requires common questions of law or fact. 25 Coughlin, 130 F.3d at 1350 . Here, Benedict joins in the claims challenging TRPA’s alleged 26 misinterpretation of the Tahoe Regional Planning Compact and the regional plan, and for alleged 27 violations of state and federal laws. (ECF No. 29-2 at 40–64.) Benedict makes unique statutory 28 and tort claims in causes of action 9–13, premised on alleged harm caused by the Existing Cell 1 Facility. (ECF No. 29-2 at 64–77.) The Court finds that there is sufficient commonality because 2 the Existing Cell Facility and the Proposed Cell facility are part of the same allegedly systemic 3 and deficient approval process as discussed previously. See id. 4 Moreover, the Court finds the addition of the proposed City defendant similarly meets 5 “commonality” requirements under Rule 20. Here, City is allegedly a permitting authority for 6 both the Proposed Cell Facility and the Existing Cell Facility. (ECF No. 39 at 7–8.) It follows 7 that City is a necessary defendant to resolve common questions of law related to both the existing 8 allegations involving the Proposed Cell Facility and Benedict’s allegations involving the Existing 9 Cell Facility. 10 Rule 20 “is to be construed liberally in order to promote trial convenience and to expedite 11 the final determination of disputes, thereby preventing multiple lawsuits.” League to Save Lake 12 Tahoe, 558 F.2d at 917. In considering principles of judicial efficiency, the Court concludes the 13 allegations involving Benedict and City are sufficiently logically related to the background facts 14 of this case to meet the “same transaction” requirement, and there are common questions of law 15 and fact to satisfy the commonality requirement under Rule 20. 16 D. Rule 15(a) 17 Even if the good cause standard is met under Rule 16(b), the Court has the discretion to 18 refuse amendment if it finds reasons to deny leave to amend under Rule 15(a). Johnson, 975 F.2d 19 at 610 . Defendants argue allowing Plaintiffs to amend would be futile and cause substantial 20 prejudice to defendants. (ECF No. 36 at 10–16.) 21 i. Futility 22 Defendants argue amendment would be futile because the claims raised in the Proposed 23 SAC will be mooted by a favorable decision on the pending motions to dismiss. (Id. at 11–14.) 24 In addition, Defendants argue the Proposed SAC does nothing to cure the defects in the FAC, and 25 thus amendment would be futile. (Id. at 11–12.) In reply, Plaintiffs contend futility of 26 amendment cannot be determined at this time because Defendants’ motions to dismiss are still 27 pending before this court on the FAC, and the Court has not had an opportunity to rule on the 28 viability of the proposed SAC. (ECF No. 39 at 9.) 1 “[A] proposed amendment is futile only if no set of facts can be proved under the 2 amendment to the pleadings that would constitute a valid and sufficient claim.” Miller v. Rykoff3 Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988), implied overruling recog. on other grounds 4 by Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also U.S. v. Corinthian Colls., 655 F.3d 984 , 995 5 (9th Cir. 2011) (“[D]ismissal without leave to amend is improper unless it is clear, upon de novo 6 review, that the complaint could not be saved by any amendment.”) (citations and internal 7 quotation marks omitted); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Balistreri v. 8 Pacifica Police Dep’t., 901 F.2d 696, 701 (9th Cir. 1988). Denial of such motions on futility 9 grounds is “rare.” Netbula, LLC v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003). 10 “Ordinarily, courts will defer consideration of challenges to the merits of a proposed amended 11 pleading until after leave to amend is granted and the amended pleading is filed.” Id. (citation 12 omitted). 13 Defendants argue the FAC suffers from various deficiencies, which have not been cured 14 by the Proposed SAC and therefore the proposed amendment is an “exercise in futility.” (ECF 15 No. 36 at 11–14) (citing Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149 , 1160 (9th Cir. 16 1989.) However, the Court has not ruled on the pending motions to dismiss, thus Defendants’ 17 chain of reasoning is broken. A speculative ruling that the Court has never made cannot be a 18 proper basis to deny Plaintiffs’ motion to file an amended complaint. This Rule 15 factor favors 19 granting Plaintiffs’ motion to file an amended complaint. 20 ii. Prejudice 21 Defendants argue the proposed amendment would prejudice Defendants in two respects: 22 (1) the Proposed SAC is “needlessly long, filled with conclusory allegations, and confusing as to 23 the nature of the claims raised” in violation of Rule 8, requiring “a short and plain statement of 24 the claim showing that the pleader is entitled to relief”; and (2) the Proposed SAC would 25 prejudice Defendants because distinct personal injury claims, with distinct alleged causes, are 26 confusingly combined in the Proposed SAC, prejudicing Defendants’ rights to a fair trial. (ECF 27 No. 36 at 15–16.) In reply, Plaintiffs contend the complexity of the action requires 81 pages of 28 allegations, and the allegations are “plainly stated and readily comprehensible.” (ECF No. 39 at 1 10.) Plaintiffs do not respond to Defendants’ arguments about prejudice from improperly 2 combining distinct personal injury claims. (See generally id.) 3 Prejudice is the factor that weighs most heavily in the Court’s analysis of whether to grant 4 leave to amend. Eminence Cap., 316 F.3d at 1052 . “Prejudice results when an amendment would 5 unnecessarily increase costs or would diminish the opposing party’s ability to respond to the 6 amended pleading.” BNSF Ry. Co. v. San Joaquin Valley R. Co., No. 1:08-cv-01086-AWI-SMS, — 7 — 2011 WL 3328398 , at *2 (E.D. Cal Aug. 2, 2011) (citation omitted). “Prejudice may be 8 established in a variety of ways, such as where a motion to amend is made after the cutoff date for 9 such motions, or when discovery has already closed or is about to close.” Lyon v. U.S. Immigr. & 10 Customs Enf’t., 308 F.R.D. 203, 214 (N.D. Cal 2015) (citing Zivkovic v. S. Cal. Edison Co., 302 11 F.3d 1080, 1087 (9th Cir. 2002)); see also Solomon v. N. Am. Life & Cas. Ins. Co., 151 F.3d 12 1132 , 1138–39 (9th Cir. 1998). “The party opposing leave to amend bears the burden of showing 13 prejudice.” U.S. v. Somnia, Inc., 339 F. Supp. 3d 947, 958 (E.D. Cal. 2018) (quoting Serpa v. 14 SBC Telecomms., 318 F. Supp. 2d 865, 870 (N.D. Cal. 2004)); DCD Programs, Ltd. v. Leighton, — 15 — 833 F.2d 183, 187 (9th Cir. 1987). 16 Defendants argue the motion to amend should be denied because the Proposed SAC is 17 unnecessarily long and confusing. (ECF No. 36 at 15.) To support their argument, Defendants 18 cite to Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 , 1058–59 (9th Cir. 19 2011). (Id.) In that case, the Ninth Circuit affirmed the district court’s denial of leave to file a 20 733-page amended pleading pursuant to Rule 8(a). Cafasso, 637 F.3d at 1058–59. In the instant 21 matter, Plaintiffs’ Proposed SAC is 81 pages. (See generally ECF No. 29-2.) While admittedly 22 lengthy, the Court need not decide whether Plaintiffs’ Proposed SAC violates Rule 8(a) as the 23 issue has not been adequately briefed in a Rule 8(a) motion to dismiss. Defendants also cite to 24 cases in which the Ninth Circuit upheld dismissals for excessive prolixity under Rule 8 in less 25 extreme cases. (ECF No. 36 at 15–16) (citing Hatch v. Reliance Ins. Co., 758 F.2d 409, 415 (9th 26 Cir. 1985) (upholding a Rule 8(a) dismissal of a complaint that “exceeded 70 pages in length [and 27 was] confusing and conclusory”); see also McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) 28 (upholding a Rule 8(a) dismissal of a complaint that was “fifty-three pages long, and mixe[d] 1 | allegations of relevant facts, irrelevant facts, political argument, and legal argument in a 2 | confusing way[.]”).) The Court does not find such cases convincing as they concern motions to 3 | dismiss as opposed to a motion to amend. 4 Accordingly, Defendants fail to meet their burden to show prejudice which would justify 5 | denying leave to amend. Typically, “a court evaluates prejudice in terms of, e.g., whether 6 | discovery cut-offs have passed, how close trial is, and so forth.” Yates v. Auto City 76, 299 7 | F.R.D. 611, 614 (N.D. Cal. 2013). Here, discovery has not started, answers have not been filed, 8 | and Defendants have failed to meet their burden to show the type of prejudice that is usually 9 | cognizable by courts. See id. Admittedly, the motion to amend has been made approximately 10 | one month after the cutoff date in the scheduling order, however, as already discussed, Plaintiffs 11 | met the “good cause” requirement of Rule 16. If Defendants wish to challenge the sufficiency of 12 | the pleading, either for prolixity or for the allegedly confusing combination of distinct personal 13 || injury claims, they can file a motion pursuant to Rule 8(a) and those arguments will be considered 14 | at that time. 15 IV. CONCLUSION 16 For the foregoing reasons, the Court hereby GRANTS Plaintiffs’ Motion for Leave to 17 | Amend the Complaint. (ECF No. 29.) Plaintiffs may file their Second Amended Complaint not 18 | later than fourteen (14) days from the electronic filing date of this Order. Defendants shall file an 19 || answer to the Second Amended Complaint not later than thirty (30) days after the electronic filing 20 | date of the Second Amended Complaint. The Second Amended Complaint will supersede the 21 | First Amended Complaint. (ECF No. 5.) Defendants’ Motions to Dismiss (ECF Nos. 12, 16) are 22 | DENIED as moot. 23 IT IS SO ORDERED. 24 | DATED: March 29, 2022 ry /) ff 26 “A MN Vika 27 Troy L. Nuhlep ] United States District Judge — 28 — — 12 —