Chavez v. Shimmick Construction Company, Inc.

• Court: District Court, S.D. California
• Decided: April 3, 2020
• Docket: 3:20-cv-00594
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD CHAVEZ, Case No. 20-cv-594-MMA (AHG)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. EX PARTE MOTION FOR LEAVE TO FILE A SECOND AMENDED 14 SHIMMICK CONSTRUCTION COMPLAINT COMPANY, INC., 15 Defendant. [Doc. No. 5] 16 17 18 On March 27, 2020, Richard Chavez (“Plaintiff”) filed this action against 19 Shimmick Construction Company, Inc. (“Defendant”). See Doc. No. 1. On April 1, 20 2020, Plaintiff filed a First Amended Complaint. See Doc. No. 4. On April 2, 2020, 21 Plaintiff filed the present ex parte motion for leave to file a Second Amended Complaint. 22 See Doc. No. 5. Plaintiff has not yet served Defendant. See id. at 3. 23 Federal Rule of Civil Procedure 15 governs amendment of pleadings. If a party 24 has already amended a pleading as a matter of course, the party seeking further 25 amendment “may amend its pleading only with the opposing party’s written consent or 26 the court’s leave. The court should freely give leave when justice so requires.” Fed. R. 27 Civ. P. 15(a)(2). This rule reflects an underlying policy that disputes should be 28 determined on their merits and not on the technicalities of pleading rules. See Nunes v. 1 ||Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004) (quoting Lopez v. Smith, 203 F.3d 1122, 1127 2 ||(9th Cir. 2000)). Accordingly, the Court must be generous in granting leave to amend. 3 ||See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) 4 ||(noting leave to amend should be granted with “extreme liberality’); Ascon Props., Inc. v. 5 ||Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (first citing DCD Programs, Ltd. v. 6 Leighton, 833 F.2d 183, 186 (9th Cir. 1987); and then citing United States v. Webb, 655 7 ||F.2d 977, 979 (9th Cir. 1981)). 8 However, courts may consider several factors in deciding whether to grant a 9 ||motion for leave to amend: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing 10 ||party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his 11 ||complaint.” Nunes, 375 F.3d at 808 (citing Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 12 ||1995)); see also Ascon Props., 866 F.2d at 1160 (citing DCD Programs, Ltd., 833 F.2d at 13 ||186); McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809 (9th Cir. 1988). The test of 14 ||futility “is identical to the one used when considering the sufficiency of a pleading 15 ||challenged under Rule 12(b)(6).” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th 16 ||Cir. 1988) (citing 3 J. Moore, Moore’s Federal Practice § 15.08[4] (2d ed. 1974)). 17 Plaintiff seeks to amend his complaint to allege negligence per se. See Doc. No. 5 18 2. Although Plaintiff has already amended his complaint once, the Court does not find 19 ||evidence of bad faith, undue delay, or prejudice to Defendants. Given that plaintiff only 20 ||recently filed this action and has not yet served Defendant, the Court finds that it must be 21 |/generous in giving Plaintiff leave to file an amended pleading. 22 Accordingly, the Court GRANTS Plaintiff's ex parte motion for leave to file a 23 ||Second Amended Complaint. The Court INSTRUCTS the Clerk of Court to file 24 ||Plaintiff's Second Amended Complaint (Doc. No. 5-1) as a separate docket entry. 25 IT IS SO ORDERED. 26 27 ||Dated: April 3, 2020 Whe L TU - l hinktlr HON. MICHAEL M. ANELLO 28 United States District Judge