Black Mountain Equities, Inc. v. Players Network, Inc.

[6] UNITED STATES DISTRICT COURT [7] SOUTHERN DISTRICT OF CALIFORNIA [9] BLACK MOUNTAIN EQUITIES, Case No. 18-cv-1745-BAS-KSC 10 INC., et al., ORDER GRANTING 11 Plaintiffs, PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST 12 v. AMENDED COMPLAINT 13 PLAYERS NETWORK, INC., [ECF No. 35] 14 Defendant. [15] 16 Presently before the Court is Plaintiffs Black Mountain Equities, Inc. and 17 Gemini Opportunities Fund, LP’s Motion for Leave to File First Amended 18 Complaint. (“Mot.,” ECF No. 35.) No opposition to the Motion has been filed.1 The 19 Court finds this Motion suitable for determination on the papers and without oral 20 argument. Civ. L. R. 7.1(d)(1). For the reasons stated below, the Court GRANTS 21 the Motion. 22 I. BACKGROUND 23 Plaintiffs filed a Complaint against Defendant Players Network, Inc. for 24 declaratory relief. Due to Defendant’s repeated failure to respond to the Complaint, [25] 26 1 Civil Local Rule 7.1.f.3.c. provides “[i]f an opposing party fails to file [an opposition] in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the granting [27] of a motion or other request for ruling by the court.” An opposition must be filed 14 days prior to 1 Plaintiffs twice requested default judgment. (ECF Nos. 9, 17.) The Court denied 2 both motions, preferring to proceed on the merits. Defendant filed an answer, the 3 parties attended an early neutral evaluation conference, and Magistrate Judge 4 Crawford issued a scheduling order for this case. Plaintiffs then filed the present 5 Motion seeking leave to file a first amended complaint. 6 II. LEGAL STANDARD 7 Under Federal Rule of Civil Procedure 15(a), a plaintiff may amend his 8 complaint once as a matter of course within specified time limits. Fed. R. Civ. P. 9 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing 10 party’s written consent or the court’s leave. The court should freely give leave when 11 justice so requires.” Fed. R. Civ. P. 15(a)(2). 12 While courts exercise broad discretion in deciding whether to allow 13 amendment, they have generally adopted a liberal policy. See United States ex rel. 14 Ehmcke Sheet Metal Works v. Wausau Ins. Cos., 755 F. Supp. 906, 908 (E.D. Cal. 15 1991) (citing Jordan v. Cnty. of Los Angeles, 669 F.2d 1311, 1324 (9th Cir.), rev'd 16 on other grounds, 459 U.S. 810 (1982) ). Accordingly, leave is generally granted 17 unless the court harbors concerns “such as undue delay, bad faith or dilatory motive 18 on the part of the movant, repeated failure to cure deficiencies by amendments 19 previously allowed, undue prejudice to the opposing party by virtue of allowance of 20 the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178 , 182 21 (1962). The non-moving party bears the burden of showing why leave to amend 22 should not be granted. Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529 , 530–31 23 (N.D. Cal. 1989). 24 III. ANALYSIS 25 The proposed amended complaint adds a new cause of action for breach of 26 contract. Plaintiffs allege the claim partially arises from a transaction Defendant 27 entered into with a third party after Plaintiffs filed their original complaint. (Mot. at 1 || faith in this Motion, as it was filed on the deadline for motions for leave to amend 2 ||and partially stems from events that could not have been referenced in the original 3 ||Complaint. (See ECF No. 33, § 2.) Further, this is the first amended complaint filed 4 |/in this case, so Plaintiffs have not had prior chances to cure any deficiencies in the 5 || original Complaint. Because Defendant has not responded to the Motion, it has not 6 || pointed to any prejudice it would suffer if the Court permits the amendment. And 7 || Plaintiffs point out that there are still five months until the end of fact discovery, so 8 || Defendant will not be prejudiced in its ability to conduct discovery on the new claim. 9 ||(Mot. at 3.) The Court also finds the amendment would not be futile, especially 10 ||considering that Defendant has failed to respond and argue futility. 11 CONCLUSION 12 For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion. (ECF No. 13 |/35.) Plaintiffs SHALL file the amended complaint attached to their Motion on or 14 before September 12, 2019. 15 IT IS SO ORDERED. , 16 || DATED: September 6, 2019 ( ill 4 (Bypha A { 17 United States District Judge