Stuart C. Irby Company, LLC v. CommNV, LLC

Opinion

3 * * *

4 STUART C. IRBY COMPANY LLC., Case No. 2:24-cv-01889-RFB-BNW

5 Plaintiff, ORDER

6 v.

7 COMMNV; ET AL.,

8 Defendant.

9 10 Before the Court is Plaintiff’s Motion for Leave to File First Amended Complaint. ECF 11 No. 52. The Uprise Defendants (Uprise Fiber LLC and Uprise LLC) opposed (ECF No. 53), and 12 Plaintiff replied (ECF No. 54). Because the Uprise Defendants fail to meet their burden of 13 showing that Plaintiff can prove no set of facts that would properly allege alter ego liability, 14 amendment is not futile. As such, the Court grants Plaintiff’s Motion. 15 I. LEGAL STANDARD 16 “[A] party may amend its pleading only with the opposing party’s written consent or the 17 court’s leave.” FED. R. CIV. P. 15(a)(2). The party opposing amendment bears the burden of 18 showing why leave should be denied. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th 19 Cir. 1987). “Five factors are taken into account to assess the propriety of a motion for leave to 20 amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and 21 whether the plaintiff has previously amended the complaint.” Johnson v. Buckley, 356 F.3d 1067, 22 1077 (9th Cir. 2004). Not all these factors carry equal weight and prejudice is the “touchstone.” 23 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). 24 Absent a showing of prejudice or a strong showing of any of the remaining factors, there 25 is a presumption that leave to amend should be granted. Id. “In exercising this discretion, a court 26 must be guided by the underlying purpose of Rule 15—to facilitate decision on the merits, rather 27 than on the pleadings or technicalities.” Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir. 1 1991) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). Generally, the 2 analysis “should be performed with all inferences in favor of granting the motion.” Griggs v. 3 Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999). 4 “Denial of leave to amend on th[e] ground [of futility] is rare. Ordinarily, courts will 5 defer consideration of challenges to the merits of a proposed amended pleading until after leave 6 to amend is granted and the amended pleading is filed.” Netbula, LLC v. Distinct Corp., 212 7 F.R.D. 534, 539 (N.D. Cal. 2003). “Deferring ruling on the sufficiency of the allegations is 8 preferred in light of the more liberal standards applicable to motions to amend and the fact that 9 the parties’ arguments are better developed through a motion to dismiss or motion for summary 10 judgment.” Steward v. CMRE Fin’l Servs., Inc., 2015 WL 6123202, at *2 (D. Nev. Oct. 16, 11 2015). Thus, amendment is futile only if no set of facts can be proven under the amendment that 12 would constitute a valid and sufficient claim. Barahona v. Union Pac. R.R. Co., 881 F.3d 1122, 13 1134 (9th Cir. 2018); Aiello v. Geico Gen. Ins. Co., 379 F. Supp. 3d 1123, 1129 (D. Nev. 2019). 15 Plaintiff seeks to amend its complaint to (1) assert allegations against the Uprise 16 Defendants and the unknown Uprise payment bond surety and (2) add Stephen Kromer and 17 Kromer Investments, LLC as alter-egos of the Uprise Defendants. The Uprise Defendants do not 18 argue bad faith, undue delay, prejudice, or complain that Plaintiff has previously amended the 19 complaint. Instead, the Uprise Defendants contend that the alter ego allegations deficient.1 2 20 For the Court to deny amendment based on futility, the Uprise Defendants must establish 21 that Plaintiff “can prove no set of facts” relevant to the alter ego claims. Barahona, 881 F.3d at 22 1134. Given Plaintiff’s newly alleged facts and their potential to cure any deficiencies, the Court 23 finds the allegation of alter ego liability is not futile. Whether the alter ego liability is plausibly

24 1 The Uprise Defendants state, in passing, that the fact that Mr. Kromer has been indicted is not 25 evidence in a civil case. It is not clear how that statement helps the Uprise Defendants meet their burden with regard to the instant motion. 26 2 This Court assumes, without deciding, that the Uprise Defendants have standing to raise this 27 challenge for purposes of this motion. 1 | alleged—and, in turn, whether such relief is ultimately permitted—is a determination for a later 2 stage. For now, the Court allows the amendments. 3| IN. CONCLUSION 4 IT IS THEREFORE ORDERED that Plaintiff's Motion for Leave to File Amended 5 | Complaint (ECF No. 52) is GRANTED. 6 IT IS FURTHER ORDERED that the Clerk of Court is directed to detach and file the Proposed Amended Complaint (ECF No. 52 at 11-76). 8 9 DATED this 9th day of July 2025. 10 lawehy BRENDA WEKSLER 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28