Opinion
2:12-cv-2191-RCJ-NJK
08-01-2013
DON JAY BLUNT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. UNITED STATES OF AMERICA, Counterclaim Plaintiff, v. DON JAY BLUNT, Counterclaim Defendant, and JENNIFER PELLIGRINO (formerly JENNIFER OLIVAS) Counterclaim Defendant.
ORDER
Before the Court is the United States of America's Unopposed Motion for Leave to Amend Counterclaim (#25).
BACKGROUND
On December 24, 2012, Plaintiff Don Jay Blunt filed a Complaint seeking a refund of federal income taxes and disputing the Internal Revenue Service's assessments made against Blunt under 26 U.S.C. § 6672. Docket No. 1. On March 1, 2013, the United States filed its Answer and Counterclaim against Blunt. Docket No. 8. On March 22, 2013 the United States filed its Amended Answer and Counterclaims against Blunt and against Jennifer Olivas. Docket No. 11. The Amended Answer and Counterclaims against Blunt and against Olivas incorrectly identified Olivas' last name.
On April 2, 2013, Ms. Olivas filed a voluntary petition under Chapter 7 of the Bankruptcy Code (11 U.S.C) in the United States Bankruptcy Court of District of Nevada, case No. 13-12765-bam. Counsel for the United States learned that Olivas' current last name is Olivas, and she was formerly known as Pellegrino, and that the Amended Answer and Counterclaim incorrectly identified her as "Pelligrino (formerly Olivas)."
The Second Amended Answer and Counterclaim differs from the Amended Answer and Counterclaim only in that it corrects Olivas' last name.
DISCUSSION
"Leave to amend shall be freely given when justice so requires." Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988), citing Fed. R. Civ. P. 15(a). "Several factors govern the propriety of a motion under rule 15: (1) undue delay, (2) bad faith, (3) futility of amendment, and (4) prejudice to the opponent." Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1319 (9th Cir. 1984), citing Hum v. Retirement Fund Trust of Plumbing, Heating & Piping Indus. S. Cal., 648 F.2d at 1254 (9th Cir. 1981).
Here, the sole purpose of the unopposed Second Amended Answer is to correct Olivias' last name. This correction will not cause undue delay, it is not futile, and it will not prejudice the opposition. Additionally, there is no evidence of bad faith. Accordingly, the Court grants leave to amend the counterclaim.
CONCLUSION
Based on the foregoing, and good cause appearing therefore,
IT IS HEREBY ORDERED that the United States of America's Unopposed Motion for Leave to Amend Counterclaim (#25) is GRANTED.
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NANCY J. KOPPE
United States Magistrate Judge