Chavez v. Shimmick Construction Company, Inc.

[5] 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA [8] 9 RICHARD CHAVEZ, Case No. 20-cv-594-MMA (AHG) 10 Plaintiff, ORDER GRANTING PLAINTIFF’S 11 v. EX PARTE MOTION FOR LEAVE TO FILE A FOURTH COMPLAINT 12 SHIMMICK CONSTRUCTION COMPANY, INC., et al., 13 [Doc. No. 12] Defendants. [15] 16 On March 27, 2020, Richard Chavez (“Plaintiff”) filed this action. See Doc. No. 1. 17 On April 1, 2020, Plaintiff filed a First Amended Complaint. See Doc. No. 4. On April 18 2, 2020, Plaintiff filed an ex parte motion for leave to file a Second Amended Complaint, 19 which the Court granted. See Doc. Nos. 5, 6. On April 15, 2020, Plaintiff filed an ex 20 parte motion for leave to file a Third Amended Complaint, which the Court granted. See 21 Doc. Nos. 8, 9. On April 20, 2020, Plaintiff filed the present ex parte motion for leave to 22 file a Fourth Amended Complaint. See Doc. No. 12. Defendants have not yet filed an 23 answer. See id. at 3. 24 Federal Rule of Civil Procedure 15 governs amendment of pleadings. If a party 25 has already amended a pleading as a matter of course, the party seeking further 26 amendment “may amend its pleading only with the opposing party’s written consent or 27 the court’s leave. The court should freely give leave when justice so requires.” Fed. R. 28 Civ. P. 15(a)(2). This rule reflects an underlying policy that disputes should be 1 determined on their merits and not on the technicalities of pleading rules. See Nunes v. 2 Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004) (quoting Lopez v. Smith, 203 F.3d 1122 , 1127 3 (9th Cir. 2000)). Accordingly, the Court must be generous in granting leave to amend. 4 See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) 5 (noting leave to amend should be granted with “extreme liberality”); Ascon Props., Inc. v. 6 Mobil Oil Co., 866 F.2d 1149 , 1160 (9th Cir. 1989) (first citing DCD Programs, Ltd. v. 7 Leighton, 833 F.2d 183, 186 (9th Cir. 1987); and then citing United States v. Webb, 655 8 F.2d 977 , 979 (9th Cir. 1981)). 9 However, courts may consider several factors in deciding whether to grant a 10 motion for leave to amend: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing 11 party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his 12 complaint.” Nunes, 375 F.3d at 808 (citing Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 13 1995)); see also Ascon Props., 866 F.2d at 1160 (citing DCD Programs, Ltd., 833 F.2d at 14 186); McGlinchy v. Shell Chem. Co., 845 F.2d 802 , 809 (9th Cir. 1988). The test of 15 futility “is identical to the one used when considering the sufficiency of a pleading 16 challenged under Rule 12(b)(6).” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th 17 Cir. 1988) (citing 3 J. Moore, Moore’s Federal Practice ¶ 15.08[4] (2d ed. 1974)). 18 Plaintiff seeks to amend his complaint to correct the name of Defendant “Nova 19 Construction Group, Inc.” to “Nova Group, Inc.” and to make edits pertaining to the 20 “employer and vessel owner in order to preserve insurance coverage.” Doc. No. 12 at 2. 21 Although Plaintiff has already amended his complaint three times, the Court does not find 22 evidence of bad faith, undue delay, or prejudice to Defendants. Given that Defendants 23 have not filed an answer and two of the Defendants have not been served, the Court finds 24 that it must be generous in giving Plaintiff leave to file another amended pleading. 25 Although the Court is mindful of the liberal amendment standard under Rule 15, the 26 Court respectfully reminds Plaintiff to be mindful of judicial resources in the future given 27 that he has filed three ex parte motions to amend within the last month. See Fed. R. Civ. 28 P. 1 . 1 Accordingly, the Court GRANTS Plaintiff's ex parte motion for leave to file a 2 ||Fourth Amended Complaint. The Court DIRECTS the Clerk of Court to file Plaintiff's 3 ||Fourth Amended Complaint (Doc. No. 12-1) as a separate docket entry. 4 IT IS SO ORDERED. [5] 6 ||Dated: April 20, 2020 JMikuh LM - (lights HON. MICHAEL M. ANELLO 7 United States District Judge