Lee v. Admiral Insurance Company

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

TIMOTHY HUNT LEE, Case No. 20-cv-07053-AGT

Plaintiff, ORDER DISCHARGING ORDER TO

SHOW CAUSE, GRANTING LEAVE v. TO FILE SECOND AMENDED

COMPLAINT, TERMINATING

CLEAR BLUE SPECIALTY INSURANCE DEFENDANT BERKLEY INSURANCE

COMPANY, et al., COMPANY’S MOTION TO DISMISS

AS MOOT

Defendants.

On December 23, 2020, defendant Berkley Insurance Company (“Berkley”) filed a motion to dismiss plaintiff’s first amended complaint. ECF No. 21. Plaintiff did not file a timely opposition and instead, on January 12, 2021, plaintiff filed a purported second amended complaint, ECF No. 23, without leave of court or written consent from the opposing parties as required by Federal Rule of Civil Procedure 15(a)(2). Berkley objected to the second amended complaint, ECF No. 24, and on January 20, the Court ordered plaintiff to show cause why the second amended complaint should not be stricken for failure to comply with Rule 15(a)(2), ECF No. 25 (“OSC”). Plaintiff filed a timely response to the OSC, which explains that plaintiff’s counsel “made a procedural error” by filing the second amended complaint without a stipulation or court order, and requests that plaintiff be given leave to amend. ECF No. 28. Berkley responds that the Court should deny leave to amend because the proposed amendment is futile as to Berkley. ECF No. 29; see also ECF No. 24 at 2–3. Specifically, Berkley argues that the proposed second amended complaint, although containing “material new matter,” ECF No. 24 at 2, remains deficient because it fails to adequately allege notice to Berkley during the policy period, ECF No. at 3–4. ] be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Allen vy. Bayshore Mall, No. 12-cv-02368-JST, 2013 WL 6441504, at *5 (N.D. Cal. Dec. 9, 2013) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). For this reason, denial of a request for leave to amend on the ground of futility “is rare and courts generally defer consideration of challenges to the merits of a proposed amended pleading until after leave to amend is granted and the amended pleading is filed.” Oracle Am., Inc. v. Hewlett Packard Enter. Co., No. 16-cv- 01393-JST, 2017 WL 3149297, at *4 (N.D. Cal. July 25, 2017) (citation omitted). At this point, without the benefit of formal briefing on the sufficiency of plaintiff's new allegations regarding notice, the Court cannot say as a matter of law that the amendment would be futile. The Court therefore declines to deny leave to amend on that basis.

Having considered the other relevant factors in deciding whether to grant leave to amend, seelnre W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013), and g 13 || that Rule 15(a)(2) “is to be applied with extreme liberality,” Owens v. Kaiser Found. Health Plan, Jnc., 244 F.3d 708, 712 (9th Cir. 2001), with “all inferences [drawn] in favor of granting [leave to 15 amend],” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999), the Court grants a 16 || plaintiff leave to file the second amended complaint. Berkley’s motion to dismiss the first || amended complaint is terminated as moot.

Plaintiff shall refile the second amended complaint at ECF No. 23 in compliance with Civil Local Rule 5.1(e)(2) by February 23, 2021. The initial case management conference currently scheduled for March 5, 2021 is continued to March 26, 2021 at 2:00 p.m.

IT ISSO ORDERED.

Dated: February 19, 2021

ALEX G. TSE

United States Magistrate Judge