Al-Bustani v. Alger

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 AL-HARETH AL-ALBUSTANI, CASE NO. C22-5238JLR 11 Plaintiff, ORDER v. SEAN B. ALGER, et al., Defendants.

15 I. INTRODUCTION 16 Before the court is Plaintiff Al-Hareth Al-Bustani’s1 motion for leave to file an amended complaint. (Mot. (Dkt. # 38); see also Mot. at 6-28, Ex. 1 (“Prop. Am.

18 Compl.”); Reply (Dkt # 40).) Defendant Sloan Bella, proceeding pro se, filed a response In prior filings, Plaintiff was identified as Al-Hareth Al-Albustani. Plaintiff’s amended complaint seeks to correct the spelling of his name to “Al-Hareth Al-Bustani.” (See Prop. Am.

Comp.) Accordingly, the court will refer to Plaintiff using the corrected spelling of his name.

1 to the motion, seeking dismissal. (Resp. (Dkt. # 39).)2 The court has considered the parties’ submissions, the relevant portions of the record, and the governing law. Being fully advised, the court GRANTS Mr. Al-Bustani’s motion to amend his complaint.

4 II. BACKGROUND 5 In this case, Mr. Al-Bustani alleges that Defendants have used the likeness of his deceased wife, Tracy Twyman, without authorization and made allegedly false and defamatory statements about the circumstances surrounding her death. (See Compl. (Dkt.

8 # 1); see also 8/9/22 Order (Dkt. # 35) (detailing Mr. Al-Bustani’s allegations).)

9 On July 11, 2022, Ms. Bella moved to dismiss Mr. Al-Bustani’s claims against her. (MTD (Dkt. # 12).) The court granted the motion in part, dismissing Mr. Al-Bustani’s claim against Ms. Bella under the Washington Personality Rights Act (“WPRA”) without prejudice for failure to adequately allege facts in support of the claim.

13 (See 8/9/22 Order at 9-12, 18.) The court granted Mr. Al-Bustani leave to submit an amended complaint by August 30, 2022 if he wished to cure deficiencies in his WPRA claim. (Id. at 18.)

16 Mr. Al-Bustani now moves to amend his complaint in order to: (1) add factual allegations in support of his WPRA claim against Ms. Bella, consistent with the court’s August 9, 2022 order; (2) add factual allegations in support of his WPRA claims against Defendants other than Ms. Bella; (3) correct legal names for various Defendants; (4) Although Ms. Bella describes her filing as a motion to dismiss (see Resp. at 1), the court construes her filing as a response to Mr. Al-Bustani’s motion to amend. Ms. Bella may move to dismiss Mr. Al-Bustani’s amended complaint after that complaint has been filed.

1 correct Plaintiff’s own legal name; (5) add as a Defendant Sun Audio Networks, LLC d/b/a G Networks; (6) add as a Defendant James Maiden; and (7) remove allegations relating to dismissed parties. (See Mot. at 2-3; see generally Prop. Am. Compl.)

4 III. ANALYSIS 5 The court sets forth the relevant legal standard before discussing Mr. Al-Bustani’s motion for leave to file an amended complaint.

7 A. Legal Standard 8 Pursuant to Federal Rule of Civil Procedure 15(a)(2), courts should “freely give leave” to amend a pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “[T]his policy is to be applied with extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (citing DCD Programs, Ltd. v. Leighton, 833 12 F.2d 183, 186 (9th Cir. 1987)).

13 Courts use five factors to assess the propriety of 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 party has previously amended its pleading. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (citing Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that leave to amend should be “freely given.”). Not all of these factors are weighted equally. “[I]t is the consideration of prejudice to the opposing party that carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citing DCD Programs, 833 F.2d at 185). “The party opposing amendment bears the burden of showing prejudice.” DCD Programs, 833 F.2d at 187 (citing Beeck v. Aqua-slide ‘N’ Dive Corp., 562 F.2d 537, 540 (8th Cir. 1977)).

3 B. Leave to File an Amended Complaint 4 Mr. Al-Bustani seeks to amend his complaint to add factual allegations supporting his claims, name newly identified defendants, and correct misspelled names or otherwise inaccurate names. Although Ms. Bella opposes Mr. Al-Bustani’s motion, she does not argue that his amendments are in bad faith, futile, or would cause either undue delay or prejudice to her. (See generally Resp.); Allen, 911 F.3d at 373; DCD Programs, 833 F.2d 9 at 187. Instead, Ms. Bella opposes Mr. Al-Bustani’s motion by disputing factual allegations in the original complaint and invoking the State of Washington’s “Anti-Slapp Law” [sic] as a defense to liability for her speech on the Ground Zero Show. (See Resp.

12 at 1-2.) To the extent Ms. Bella asks the court to deny Mr. Al-Bustani’s motion with respect to his proposed changes to the factual allegations supporting his WPRA claim against her, Ms. Bella’s motion is moot, as the court already granted Mr. Al-Bustani leave to amend his complaint to add such allegations. (See 8/9/22 Order at 18 (granting Mr. Al-Bustani leave to amend his WPRA claim).). Ms. Bella does not address the remaining amendments Mr. Al-Bustani proposes (See generally Resp.)

18 Accordingly, the court finds that Ms. Bella has not made the requisite showing to oppose Mr. Al-Bustani’s motion and GRANTS Mr. Al-Bustani’s motion for leave to file an amended complaint. See DCD Programs, 833 F.2d at 187 (noting the opposing party bears the burden of showing prejudice).

1 IV. CONCLUSION 2 The court GRANTS Mr. Al-Bustani’s motion to amend his complaint (Dkt. # 38).

3 The court DIRECTS the clerk to correct the caption to reflect the proper spelling of Mr. Al-Bustani’s name.

5 Dated this 20th day of September, 2022.

6 A 7 ________________________ 8 JAMES L. ROBART United States District Judge