Opinion
No. 2:08-CV-0018-PHX-RCB.
March 2, 2009
ORDER
Currently pending before the court is a Motion for Leave to Amend by plaintiffs James A. Monroe and Kimberly Monroe Clark (doc. 19).
Background
The court assumes familiarity with the protracted and rather tortured procedural history of this action. A few aspects of that history are directly germane to the present motion however.
Plaintiffs sought to amend their complaint in Arizona Superior Court, Maricopa County, because it had "come to th[eir] attention . . . that Defendant Miljenovic [sic] was directly involved in the [alleged] wrongful eviction of Plaintiffs." Id., exh. 2 thereto at 2. That amendment was proper, according to plaintiffs, because "[w]rongful eviction is . . . actionable" in Arizona. Id., exh. 2 thereto at 2. Before that motion was resolved, however, defendants removed that state court action to this federal district court.
Plaintiffs now perfunctorily assert that they should be allowed to amend their complaint as to Ross Miljenovich because "[n]one of the reasons articulated by the U.S. Supreme court in Foman v. Davis [ 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 22 (1962)] are present here." Id. at 4. The defendants did not file responses to this motion, although the time to do so has long since passed. In fact, although obviously the court has not yet granted this motion to amend, Mr. Miljenovich filed a "Second Amended Answer to the Second Amended Complaint filed by" plaintiffs. Miljenovich Ans. (doc. 24) at 2. Mr. Miljenovich filed that answer within three weeks of plaintiffs filing their motion to amend and lodging their proposed second amended complaint.
Discussion
Pursuant to LRCiv 7.2(I) defendants' failure to file an answering memorandum may be deemed consent to granting this motion. In its discretion, however, the court will briefly analyze the merits of this motion. See LRCiv 7.2(I) (emphasis added) ("[N]on-compliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily.")
Rule 15(a) provides that a party has the right to amend its "pleading once as a matter of course at any time before a responsive pleading is served." Fed.R.Civ.P. 15(a) (emphasis added). Shortly after removal, plaintiffs filed an amended complaint (docs. 4 and 5). Therefore, in accordance with Fed.R.Civ.P. 15(a)(2), plaintiffs may amend their complaint again "only with the opposing party's written consent or the court's leave." Defendants have not given their written consent, so the court must decide whether to allow plaintiffs to amend.
Rule 15(a)(2) also provides that courts "should freely grant leave [to amend] when justice so requires." Fed.R.Civ.P. 15(a)(2). According to the Ninth Circuit, "[t]his policy is to be applied with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (internal quotation marks and citations omitted). In deciding whether to grant leave to amend, the Supreme Court has instructed:
In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave should, as the rules require, be `freely given.'Id. at 182, 83 S.Ct. 227. "Not all of these factors merit equal weight[]" however. Eminence Capital, 316 F.3d at 1052. "[C]onsideration of prejudice to the opposing party . . . carries the greatest weight." Id. (citation omitted). Moreover, "[a]bsent prejudice, or a strong showing of any of the remainingFoman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Id. (emphasis in original) (citation omitted).
Considering all of the Foman factors, the court finds that plaintiffs' motion for leave to amend should be granted. As previously mentioned, no opposition was filed. Presumably by their silence, defendants are conceding that there is no prejudice in allowing amendment here; and the court can conceive of none. There is also no evidence of bad faith or undue delay. It appears that this motion to amend is nearly identical to the one which plaintiffs filed in state court prior to removal. Additionally, plaintiffs are seeking this amendment because they have "discovered" evidence which they believe supports a cause of action for wrongful eviction against Mr. Miljenovich. Mot. (doc. 19) at 3. Thus, adopting the Ninth Circuit's "presumption" of granting leave in such circumstances, the court hereby GRANTS plaintiffs' motion to amend. See Eminence Capital, 316 F.3d at 1052.
Accordingly, IT IS ORDERED that the "Motion for Leave to Amend Complaint" filed by plaintiffs James A. Monroe and Kimberly Monroe Clark (doc. 19) is GRANTED. The Clerk of the Court is directed to file plaintiffs Second Amended Complaint (doc. 22) previously . . . lodged with the court.