Opinion
1:06-cv-01527-SMS.
January 14, 2008
Plaintiffs are proceeding with a civil action in this Court. The matter has been referred to the Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73(b), and Local Rule 73-301. Pending before the Court is the motion of Defendant Walbro Engine Management, LLC., for leave to file a first amended answer.
Because Defendant has already filed one amended answer, the motion is considered as a motion for leave to file a second amended answer.
The instant suit is one for personal injury and property damage to both Plaintiffs based on general negligence and product liability and suffered when a lawnmower which Defendants manufactured and sold was used by Plaintiff Vernon Holmes in August 2005, and resulted in a fire. Defendant WEM filed an answer on September 20, 2006, and an amended answer on October 6, 2006. The motion for leave to file an amended answer was filed on December 6, 2007, with a memorandum and declaration of Daniel P. Lyons with attachments. Plaintiffs filed notice of non-opposition on December 28, 2007, in which they stated that they had no opposition for the granting of the motion for leave to file a first amended answer to set up an omitted compulsory counterclaim against Plaintiff Vernon Holmes. Defendant filed a notice on January 14, 2008, in which it requested that the motion be granted without a hearing and the matter be submitted on the papers. By separate order, the hearing on the motion has been vacated, and the matter has been submitted to the Court for decision.
Based on facts obtained in discovery, Defendant WEM seeks to file a second amended answer to set up omitted counterclaims against Plaintiff Vernon Holmes, including indemnity, declaratory relief, and negligence based on Plaintiff's allegedly illegal and negligent act of mowing dried weeds and grass on his property in violation of California law.
The parties have stipulated to a continuance of expert disclosure dates and other dates.
Fed.R.Civ.P. 13(f) provides that the Court may permit a party to amend a pleading to add a counterclaim if it was omitted through oversight, inadvertence, or excusable neglect or if justice so requires. Generally, pursuant to Rule 15(a), amendment of pleadings should be liberally allowed, and in determining whether leave to amend should be granted, courts consider factors such as the good faith and diligence of the claimant, the extent of the delay, futility of amendment, and the danger of prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). These factors are likewise considered in determining if, pursuant to Rule 13(f), leave should be granted to allow an amendment to allege a counterclaim omitted through oversight, inadvertence, or excusable neglect, or when justice requires. Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 392 n. 10 (1993); Hip Hop Beverage Corp. v. RIC Representcoes Importacao e Comercio Ltda., 220 F.R.D. 614, 620 (C.D.Cal. 2003). Generally, although the decision to grant or deny a motion for leave to amend is governed by the district court's discretion, amendment is permitted unless the opposing party makes a showing of undue delay, bad faith, undue prejudice, or futility of amendment on the part of the moving party. Hip Hop Beverage Corp. RIC etc., 220 F.R.D. 614, 620 (C.D.Cal. 2003).
A counterclaim is compulsory, and thus must be alleged in the action or be lost after its conclusion, if it arises out of the same transaction or occurrence as the plaintiff's claim. Fed.R.Civ.P. 13(a); Hydranautics v. Filmtec Corp., 70 F.3d 533, 536 (9th Cir. 1995). A claim arises out of the same transaction or occurrence if the issues of fact and law are largely the same for both the claim and counterclaim, the same evidence will support or refute both claims, res judicata would bar a subsequent suit on the defendant's claim, or there is a logical relationship between the claim and counterclaim. FDIC v. Hulsey, 22 F.3d 1472, 1487 (10th Cir. 1994).
Here, the counterclaim arises out of the same transaction and raises some issues of fact and law that are the same as the underlying claim. There is no showing of improper purpose, undue delay, or prejudice. The motion is unopposed.
Accordingly, it IS ORDERED that the motion of Defendant Walbro Engine Management, LLC., for leave to file a second amended answer, IS GRANTED.
Defendant SHALL FILE the second amended answer no later than fifteen days after the date of the filing of this order.
IT IS SO ORDERED.