1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GS Holistic, LLC, No. 2:23-cv-00359-KJM-JDP 12 Plaintiff, ORDER 13 v. Aman Sayed Delery d/b/a Tobaccoville and 15 Aman Sayed Delery, 16 Defendants. 17 Plaintiff GS Holistic, LLC requests the court set aside the entry of default against 18 | defendant Aman Sayed Delery and seeks leave to file a second amended complaint. No 19 | opposition was filed. For the reasons set forth below, the court grants the motion. 20 | I. BACKGROUND 21 Plaintiff GS Holistic, LLC originally filed this trademark action against Tobaccoville 22 | d/b/a Tobaccoville and John Doe. See generally Compl., ECF No. 1. Plaintiff subsequently filed 23 | a first amended complaint after discovering the “correct” defendants were Aman Sayed Delery 24 | d/b/a Tobaccoville and Aman Sayed Delery. See First Am. Compl., ECF No. 7. Plaintiff then 25 | filed a request for entry of default, see Req., ECF No. 10, which the Clerk of Court entered 26 | against Aman Sayed Delery, see Default Entry, ECF No. 11. Plaintiff next filed a motion for 27 | default judgment. See Default J. Mot., ECF No. 12. In response, Aman Sayed Delery filed a 28 | notice stating he had received the motion for default judgment but believed he had received the

1 notice in error because he was only a Tobaccoville employee and not the store owner. See 2 Notice, ECF No. 16. The assigned magistrate judge scheduled a hearing on the motion and a 3 representative for defendants appeared at the courthouse. See Hr’g Mins., ECF No. 17. Plaintiff 4 states the representative in attendance was Himayat Hotaki. Mot. ¶ 6, ECF No. 22. The hearing 5 was continued, see Hr’g Mins., and plaintiff withdrew its motion for default judgment, see 6 Withdrawal Notice, ECF No. 20. 7 Plaintiff now seeks leave to file a second amended complaint to add Hotaki as a defendant 8 and requests the court set aside the entry of default against Delery, see Mot. The court submitted 9 the motion without a hearing as provided under Local Rule 230(g). Min. Order (July 29, 2024), 10 ECF No. 23. 11 II. LEGAL STANDARD 12 Rule 15 permits a party to amend its complaint with the court’s permission. See Fed. R. 13 Civ. P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. The Ninth 14 Circuit has long “stressed Rule 15’s policy of favoring amendments” and has “applied this policy 15 with liberality.” Ascon Props., Inc. v. Mobil Oil Co.,

, 1160 (9th Cir. 1989). 16 Requests to amend are ordinarily denied only when they will result in undue delay or prejudice, 17 when they are sought in bad faith, when a plaintiff has repeatedly failed to cure deficiencies or 18 when amendment would be futile. See Foman v. Davis,

(1962). 19 III. ANALYSIS 20 Here, plaintiff argues the Rule 15 standard is met. The court agrees. First, adding Hotaki, 21 the alleged owner of the retail store, will not prejudice the opposing parties. Instead, it will allow 22 the proper defendants to present their defense and allow the court to decide this action on the 23 merits. Second, granting plaintiff’s request will not cause undue delay, as this case is still in the 24 beginning stages and the court has not yet issued a scheduling order under Federal Rule of Civil 25 Procedure 16. Finally, there are no facts to indicate this motion was sought in bad faith, and 26 because Hotaki previously appeared as defendants’ representative, it does not seem this 27 amendment would be futile. Accordingly, the court grants the motion to amend and strikes as 28 moot the Clerk’s entry of default as to Delery. See, e.g., GS Holistic, LLC v. Maya & Jill, Inc., 1 | No. 23-00775,

, at *2 (C.D. Cal. Oct. 20, 2023) (striking entry of default as 2 | moot, because the court granted the request to file an amended complaint); ThermoLife Int’l, LLC 3 | v. Sechel Holdings, Inc., No. 14-2291,

, at *1 (D. Ariz. Apr. 3, 2015) 4 | (“Because [p]laintiff’s original complaint no longer performs any function, a default based on the 5 | original complaint must also be rendered ineffectual and non-existent” (internal marks and 6 | citations omitted)). IV. CONCLUSION 8 For the reasons set forth above, the court grants the motion to amend and strikes as moot 9 | the clerk’s entry of default as to Aman Sayed Delery at ECF No. 11. An amended complaint 10 | shall be filed within seven days. 11 This order resolves ECF No. 22. 12 IT IS SO ORDERED. 13 DATED: August 22, 2024. / / 14 CHIEF ED STATES DISTRICT JUDGE