Chavez v. Shimmick Construction Company, Inc.

6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA RICHARD CHAVEZ, Case No. 20-cv-594-MMA (AHG) 10 Plaintiff, ORDER GRANTING PLAINTIFF’S v. EX PARTE MOTION FOR LEAVE TO FILE A FIFTH AMENDED SHIMMICK CONSTRUCTION COMPLAINT COMPANY, INC., et al., Defendants. [Doc. No. 24] 16 Richard Chavez (“Plaintiff”) moves ex parte for leave to file a Fifth Amended Complaint. See Doc. No. 24. Plaintiff’s counsel declares that he spoke with Defendants’ counsel before filing the instant motion and that Defendants’ counsel do not oppose the motion. See Easley Decl., Doc. No 24-2 ¶¶ 2.

20 Federal Rule of Civil Procedure 15 governs amendment of pleadings. If a party has already amended a pleading as a matter of course, the party seeking further amendment “may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). This rule reflects an underlying policy that disputes should be determined on their merits and not on the technicalities of pleading rules. See Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004) (quoting Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)). Accordingly, the Court must be generous in granting leave to amend.

28 See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) ||(noting leave to amend should be granted with “extreme liberality”); Ascon Props., Inc. v. ||Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (first citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); and then citing United States v. Webb, 655 ||F.2d 977, 979 (9th Cir. 1981)).

5 However, courts may consider several factors in deciding whether to grant a ||motion for leave to amend: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing ||party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his ||}complaint.” Nunes, 375 F.3d at 808 (citing Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. ||1995)); see also Ascon Props., 866 F.2d at 1160 (citing DCD Programs, Ltd., 833 F.2d at 10 ||186); McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809 (9th Cir. 1988). The test of ||futility “is identical to the one used when considering the sufficiency of a pleading ||challenged under Rule 12(b)(6).” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th ||Cir. 1988) (citing 3 J. Moore, Moore’s Federal Practice 4 15.08[4] (2d ed. 1974)).

14 Plaintiff seeks to amend his complaint to identify a crane barge and correct ||Plaintiff’s job title. See Doc. No. 24 at 2. Although Plaintiff has already amended his ||complaint four times, the Court does not find evidence of bad faith, undue delay, or ||prejudice to Defendants. Given that Defendants do not oppose the motion, see Easley ||Decl., Doc. No 24-2 4¥ 2, the Court finds that it must be generous in giving Plaintiff ||leave to file another amended pleading.

20 Accordingly, the Court GRANTS Plaintiff's ex parte motion for leave to file a ||Fifth Amended Complaint. The Court DIRECTS the Clerk of Court to file Plaintiff's ||Fifth Amended Complaint (Doc. No. 24-1) as a separate docket entry.

23 IT IS SO ORDERED.

25 ||Dated: June 2, 2020 “ Miku MM l le HON. MICHAEL M. ANELLO 26 United States District Judge