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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 AMAZON.COM INC., et al., CASE NO. C19-0990JLR 11 Plaintiffs, ORDER DENYING v. DEFENDANT’S MOTION TO 12 AMEND CHUN WONG, et al., 13 Defendants. 14
15 I. INTRODUCTION 16 Before the court is Defendant Chun Wong’s motion to amend his answer and 17 assert a counterclaim against Plaintiffs Amazon.com, Inc. (“Amazon”) and Nite Ize, Inc. 18 (“Nite Ize”) (collectively, “Plaintiffs”). (MTA (Dkt. # 96); Reply (Dkt # 98).) Plaintiffs 19 oppose the motion. (Resp. (Dkt. # 97).) The court has reviewed the motion, the relevant 20 // 21 // 22 // 1 portions of the record, and the governing law. Being fully advised,1 the court DENIES 2 Mr. Wong’s motion to amend his answer and assert a counterclaim.
3 II. BACKGROUND 4 This action arises out of Plaintiffs’ allegations that Mr. Wong established and 5 operated numerous Amazon selling accounts through which he sold counterfeit Nite Ize 6 STEELIE products in the Amazon Store. (FAC (Dkt. # 31) ¶¶ 36, 38.) On June 26, 7 2019, Plaintiffs filed this action against Mr. Wong and other defendants, alleging 8 trademark infringement, false designation of origin, breach of contract, false advertising,
9 and civil conspiracy. (See Compl. (Dkt. # 1); FAC ¶¶ 78-113.) Mr. Wong did not 10 answer the amended complaint until July 1, 2021. (Ans. (Dkt. # 41).) 11 On March 11, 2022, the court filed a scheduling order which set the deadline for 12 the parties to amend their pleadings on May 20, 2022. (3/11/22 Sched. Ord. (Dkt. # 66) 13 at 2.) Notably, Mr. Wong did not file the present motion to amend before that deadline.
14 (See MTA.) 15 After Mr. Wong repeatedly failed to respond adequately to Plaintiffs’ discovery 16 requests, even after the court granted Plaintiffs’ motion to compel such responses, 17 Plaintiffs planned to file a motion for sanctions and entry default after the November 2, 18 2022 discovery deadline. (See, e.g., Resp. at 3; Pls. 11/2/22 SR (Dkt. # 84); Pls. 11/14/22
19 OSC Resp. (Dkt. # 87); Mot. to Compel (Dkt. # 56); 3/7/22 Ord. (Dkt. # 64) at 13; Powar 20 Decl. (Dkt. # 58) ¶ 2; 1/31/22 Rainwater Decl. (Dkt. # 57) ¶¶ 3-8.) On November 1, 21
1 Neither party requests oral argument (see MTA at 1; Resp. at 1), and the court finds oral 22 argument unnecessary to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4). 1 2022, however, Mr. Wong filed for bankruptcy. See Chapter 7 Voluntary Petition, In re 2 Wong, No. 22-11767TWD (Bankr. W.D. Wash. Nov. 1, 2022), Dkt. # 1. On November
3 16, 2022, this court stayed the case pending the resolution of Mr. Wong’s bankruptcy 4 proceeding. (11/16/22 Ord. (Dkt. # 89).) On February 16, 2023, the bankruptcy court 5 dismissed Mr. Wong’s case because he failed to appear for his Section 341 Meeting of 6 Creditors. See Ex Parte Order Dismissing Case for Failure to Appear at Meeting of 7 Creditors, In re Wong, No. 22-11767TWD (Bankr. W.D. Wash. Feb. 16, 2023), Dkt. 8 # 35. On February 17, 2023, the court lifted its stay pursuant to 11 U.S.C.
9 § 362(C)(2)(B). (2/17/23 Ord. (Dkt. # 91).) 10 Plaintiffs then filed their motion for sanctions and entry of default against Mr. 11 Wong. (See Mot. for Sanctions (Dkt. # 92).) On March 7, 2023, the court deferred ruling 12 on Plaintiffs’ motion for sanctions and default and ordered Mr. Wong to fully respond to 13 Plaintiffs second set of discovery requests by March 21, 2023, and to complete his
14 deposition by March 31, 2023. (See 3/6/23 Ord. (Dkt. # 95).) 15 On March 13, 2023, Mr. Wong filed the instant motion for leave to amend his 16 answer. (MTA at 1.) 17 III. ANALYSIS 18 Pursuant to Federal Rule of Civil Procedure 15(a), courts should “freely give
19 leave” to amend a pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). After a 20 district court files a scheduling order and the deadline for amending a pleading expires, 21 however, a party moving to amend a pleading must first show “good cause” for 22 amendment under Federal Rule of Civil Procedure 16(b)(4). Fed. R. Civ. P. 16(b)(4); 1 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). If a party 2 can show “good cause” under Rule 16(b)(4), it must then demonstrate that the
3 amendment is proper under Rule 15(a). Johnson, 975 F.2d at 608. “Unlike Rule 15(a)’s 4 liberal amendment policy which focuses on the bad faith of the party seeking to interpose 5 an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ 6 standard primarily considers the diligence of the party seeking the amendment.” Id. at 7 609. 8 Here, the court filed its scheduling order on March 11, 2022, and the deadline for
9 amending pleadings expired on May 20, 2022. (3/11/22 Sched. Ord. at 2.) Because Mr. 10 Wong did not file his motion to amend until March 13, 2023, the court must first 11 determine whether Mr. Wong has shown “good cause” under Rule 16(b)(4) before 12 considering whether Mr. Wong may amend his complaint under Rule 15(a). 13 A. Mr. Wong Has Not Shown “Good Cause”
14 To show “good cause” under Rule 16(b)(4), a party must show that, despite its 15 diligence, it could not meet the deadline in the scheduling order. Johnson, 975 F.2d at 16 609. “If the party was not diligent, the inquiry should end.” Id. 17 Mr. Wong did not discuss the “good cause” standard under Rule 16(b)(4) in his 18 briefing (see generally MTA; Reply), even after Plaintiffs raised and argued the issue in
19 their response (see generally Resp. at 4-5). Instead, Mr. Wong argues extensively that his 20 proposed amendments are proper under Rule 15(a). (See generally MTA; Reply.) 21 Absent the initial showing required under Rule 16(b)(4), the court is foreclosed from 22 1 considering whether amendment is appropriate under Rule 15(a).2 See Johnson, 975 F.2d 2 at 608. As such, the court concludes that Mr. Wong has not shown “good cause” for
3 amendment under Rule 16(b)(4). See id. at 609. 4 B. Mr. Wong’s Proposed Amendments Would Cause Undue Delay and His Counterclaim Is Futile 5 Even if Mr. Wong had shown “good cause” under Rule 16(b)(4), denial of his 6 motion to amend is also appropriate under Rule 15(a). Courts consider five factors to 7 assess the propriety of a motion for leave to amend: (1) bad faith, (2) undue delay, 8 (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the party 9 has previously amended its pleading. Allen v. City of Beverly Hills, 911 F.2d 367, 373 10 (9th Cir. 1990) (citing Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 11 1989)). 12 Mr. Wong requests the court grant him leave to amend his answer for three 13 reasons: (1) to incorporate more complete statements of fact; (2) to supplement 14 previously made denials; and (3) to include a counterclaim for abuse of process against 15 Amazon. (MTA at 1.) 16 Mr. Wong’s first two reasons do not justify granting leave to amend because the 17 proposed amendments would cause undue delay. When evaluating undue delay, a court 18 inquires “whether the moving party knew or should have known the facts and theories 19 raised by the amendment in the original pleading.” Jackson v.
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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 AMAZON.COM INC., et al., CASE NO. C19-0990JLR 11 Plaintiffs, ORDER DENYING v. DEFENDANT’S MOTION TO 12 AMEND CHUN WONG, et al., 13 Defendants. 14
15 I. INTRODUCTION 16 Before the court is Defendant Chun Wong’s motion to amend his answer and 17 assert a counterclaim against Plaintiffs Amazon.com, Inc. (“Amazon”) and Nite Ize, Inc. 18 (“Nite Ize”) (collectively, “Plaintiffs”). (MTA (Dkt. # 96); Reply (Dkt # 98).) Plaintiffs 19 oppose the motion. (Resp. (Dkt. # 97).) The court has reviewed the motion, the relevant 20 // 21 // 22 // 1 portions of the record, and the governing law. Being fully advised,1 the court DENIES 2 Mr. Wong’s motion to amend his answer and assert a counterclaim.
3 II. BACKGROUND 4 This action arises out of Plaintiffs’ allegations that Mr. Wong established and 5 operated numerous Amazon selling accounts through which he sold counterfeit Nite Ize 6 STEELIE products in the Amazon Store. (FAC (Dkt. # 31) ¶¶ 36, 38.) On June 26, 7 2019, Plaintiffs filed this action against Mr. Wong and other defendants, alleging 8 trademark infringement, false designation of origin, breach of contract, false advertising,
9 and civil conspiracy. (See Compl. (Dkt. # 1); FAC ¶¶ 78-113.) Mr. Wong did not 10 answer the amended complaint until July 1, 2021. (Ans. (Dkt. # 41).) 11 On March 11, 2022, the court filed a scheduling order which set the deadline for 12 the parties to amend their pleadings on May 20, 2022. (3/11/22 Sched. Ord. (Dkt. # 66) 13 at 2.) Notably, Mr. Wong did not file the present motion to amend before that deadline.
14 (See MTA.) 15 After Mr. Wong repeatedly failed to respond adequately to Plaintiffs’ discovery 16 requests, even after the court granted Plaintiffs’ motion to compel such responses, 17 Plaintiffs planned to file a motion for sanctions and entry default after the November 2, 18 2022 discovery deadline. (See, e.g., Resp. at 3; Pls. 11/2/22 SR (Dkt. # 84); Pls. 11/14/22
19 OSC Resp. (Dkt. # 87); Mot. to Compel (Dkt. # 56); 3/7/22 Ord. (Dkt. # 64) at 13; Powar 20 Decl. (Dkt. # 58) ¶ 2; 1/31/22 Rainwater Decl. (Dkt. # 57) ¶¶ 3-8.) On November 1, 21
1 Neither party requests oral argument (see MTA at 1; Resp. at 1), and the court finds oral 22 argument unnecessary to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4). 1 2022, however, Mr. Wong filed for bankruptcy. See Chapter 7 Voluntary Petition, In re 2 Wong, No. 22-11767TWD (Bankr. W.D. Wash. Nov. 1, 2022), Dkt. # 1. On November
3 16, 2022, this court stayed the case pending the resolution of Mr. Wong’s bankruptcy 4 proceeding. (11/16/22 Ord. (Dkt. # 89).) On February 16, 2023, the bankruptcy court 5 dismissed Mr. Wong’s case because he failed to appear for his Section 341 Meeting of 6 Creditors. See Ex Parte Order Dismissing Case for Failure to Appear at Meeting of 7 Creditors, In re Wong, No. 22-11767TWD (Bankr. W.D. Wash. Feb. 16, 2023), Dkt. 8 # 35. On February 17, 2023, the court lifted its stay pursuant to 11 U.S.C.
9 § 362(C)(2)(B). (2/17/23 Ord. (Dkt. # 91).) 10 Plaintiffs then filed their motion for sanctions and entry of default against Mr. 11 Wong. (See Mot. for Sanctions (Dkt. # 92).) On March 7, 2023, the court deferred ruling 12 on Plaintiffs’ motion for sanctions and default and ordered Mr. Wong to fully respond to 13 Plaintiffs second set of discovery requests by March 21, 2023, and to complete his
14 deposition by March 31, 2023. (See 3/6/23 Ord. (Dkt. # 95).) 15 On March 13, 2023, Mr. Wong filed the instant motion for leave to amend his 16 answer. (MTA at 1.) 17 III. ANALYSIS 18 Pursuant to Federal Rule of Civil Procedure 15(a), courts should “freely give
19 leave” to amend a pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). After a 20 district court files a scheduling order and the deadline for amending a pleading expires, 21 however, a party moving to amend a pleading must first show “good cause” for 22 amendment under Federal Rule of Civil Procedure 16(b)(4). Fed. R. Civ. P. 16(b)(4); 1 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). If a party 2 can show “good cause” under Rule 16(b)(4), it must then demonstrate that the
3 amendment is proper under Rule 15(a). Johnson, 975 F.2d at 608. “Unlike Rule 15(a)’s 4 liberal amendment policy which focuses on the bad faith of the party seeking to interpose 5 an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ 6 standard primarily considers the diligence of the party seeking the amendment.” Id. at 7 609. 8 Here, the court filed its scheduling order on March 11, 2022, and the deadline for
9 amending pleadings expired on May 20, 2022. (3/11/22 Sched. Ord. at 2.) Because Mr. 10 Wong did not file his motion to amend until March 13, 2023, the court must first 11 determine whether Mr. Wong has shown “good cause” under Rule 16(b)(4) before 12 considering whether Mr. Wong may amend his complaint under Rule 15(a). 13 A. Mr. Wong Has Not Shown “Good Cause”
14 To show “good cause” under Rule 16(b)(4), a party must show that, despite its 15 diligence, it could not meet the deadline in the scheduling order. Johnson, 975 F.2d at 16 609. “If the party was not diligent, the inquiry should end.” Id. 17 Mr. Wong did not discuss the “good cause” standard under Rule 16(b)(4) in his 18 briefing (see generally MTA; Reply), even after Plaintiffs raised and argued the issue in
19 their response (see generally Resp. at 4-5). Instead, Mr. Wong argues extensively that his 20 proposed amendments are proper under Rule 15(a). (See generally MTA; Reply.) 21 Absent the initial showing required under Rule 16(b)(4), the court is foreclosed from 22 1 considering whether amendment is appropriate under Rule 15(a).2 See Johnson, 975 F.2d 2 at 608. As such, the court concludes that Mr. Wong has not shown “good cause” for
3 amendment under Rule 16(b)(4). See id. at 609. 4 B. Mr. Wong’s Proposed Amendments Would Cause Undue Delay and His Counterclaim Is Futile 5 Even if Mr. Wong had shown “good cause” under Rule 16(b)(4), denial of his 6 motion to amend is also appropriate under Rule 15(a). Courts consider five factors to 7 assess the propriety of a motion for leave to amend: (1) bad faith, (2) undue delay, 8 (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the party 9 has previously amended its pleading. Allen v. City of Beverly Hills, 911 F.2d 367, 373 10 (9th Cir. 1990) (citing Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 11 1989)). 12 Mr. Wong requests the court grant him leave to amend his answer for three 13 reasons: (1) to incorporate more complete statements of fact; (2) to supplement 14 previously made denials; and (3) to include a counterclaim for abuse of process against 15 Amazon. (MTA at 1.) 16 Mr. Wong’s first two reasons do not justify granting leave to amend because the 17 proposed amendments would cause undue delay. When evaluating undue delay, a court 18 inquires “whether the moving party knew or should have known the facts and theories 19 raised by the amendment in the original pleading.” Jackson v. Bank of Haw., 902 F.2d 20
21 2 Regardless, any such argument would fail. Mr. Wong has not demonstrated diligence: not only did he fail to request an extension, but he also filed the present motion ten months after 22 the deadline. (See generally 3/11/22 Sched. Ord.; Dkt.; MTA); see Johnson, 975 F.2d at 609. 1 1385, 1388 (9th Cir. 1990) (finding an eight-month delay between the time of obtaining 2 relevant facts and seeking a leave to amend to be “unjustified”). Here, Mr. Wong knew
3 or should have known the facts he asserts in his proposed amended answer either when 4 he filed his original pleading or before the deadline for amending pleadings. (See 5 generally MTA, Ex. 1 (“Proposed Am. Ans.”).) 6 Mr. Wong’s third reason for seeking amendment also does not justify granting 7 leave to amend because his proposed counterclaim fails as a matter of law and 8 amendment would therefore be futile. See Allen, 911 F.2d at 373; Bonin v. Calderon, 59
9 F.3d 815, 845 (9th Cir. 1995) (“Futility of amendment can, by itself, justify the denial of 10 a motion for leave to amend.”). “A determination of futility contemplates 11 whether . . . the amendment could present a viable claim on the merits for which relief 12 could be granted.” Murray v. Schriro, 745 F.3d 984, 1015 (9th Cir. 2014) (citing 13 Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 893 (9th Cir. 2010)).
14 Mr. Wong seeks to allege a counterclaim that Plaintiffs violated RCW 4.24.350 by 15 pursuing a malicious prosecution against him. (See Proposed Am. Ans. ¶¶ 155-70; MTA 16 at 10-11 (explaining that his claim is based on RCW 4.24.250).) To prevail on a civil 17 malicious prosecution claim, the plaintiff must show, among other elements, a lack of 18 “probable cause for the institution or continuation of the prosecution.” Clark v. Baines,
19 84 P.3d 245, 248 (Wash. 2004); see also Nguyen v. Cnty. of Clark, No. C10-5267BHS, 20 2011 WL 181393, at *3 (W.D. Wash. Jan. 19, 2011) (defining lack of probable cause as 21 // 22 // 1 an absence of reasonable belief in the existence of facts on which its claim is based or in 2 the legal validity of the claim itself).3
3 Here, Plaintiffs allege that Mr. Wong established and operated numerous 4 counterfeit Nite Ize selling accounts in the Amazon Store, and Mr. Wong has admitted at 5 least in part to that conduct. (FAC ¶ 36; Def. Status Rep. (Dkt. # 85) ¶ 7; see also MTA 6 at 10 (acknowledging that Mr. Wong “has long admitted what he has done”).) Because 7 there is a reasonable factual basis for Plaintiffs’ claims, Plaintiffs had probable cause to 8 initiate their lawsuit. As a result, Mr. Wong’s proposed counterclaim fails as a matter of
9 law. Because Mr. Wong’s proposed counterclaim and amendments are futile and would 10 cause undue delay under Rule 15(a), the court DENIES Mr. Wong’s motion to amend his 11 answer. 12 IV. CONCLUSION 13 For the reasons stated above, the court DENIES Mr. Wong’s motion to amend his
14 answer and assert a counterclaim (Dkt. # 96). 15 Dated this 6th day of April, 2023. 16 A 17 JAMES L. ROBART 18 United States District Judge 19 3 Additionally, a party alleging a claim of civil malicious prosecution must show (1) that 20 the prosecution claimed to have been malicious was instituted or continued by the defendant; (2) that the proceedings were instituted or continued through malice; (3) that the proceedings terminated on the merits in favor of the plaintiff, or were abandoned; (4) that the plaintiff 21 suffered injury or damage as a result of the prosecution (5) arrest or seizure of property and (6) special injury (meaning injury which would not necessarily result from similar causes of 22 action). Clark, 84 P.3d at 248-49.