United States District Court, D. Nevada
JOHN E. ASHCRAFT, Plaintiffs,
WELK RESORT GROUP, CORP, et al, Defendants.
ORDER (DOCKET NO. 66)
J. KOPPE UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff's motion for leave to amend
the complaint. Docket No. 66; see also Docket Nos.
67, 70 (errata). Defendant Experian filed a response in
opposition. Docket No. 69. Plaintiff filed a reply. Docket
No. 74. The motion is properly resolved without a hearing.
Local Rule 78-1. For the reasons discussed below, the motion
case involves claims under the Fair Credit Report Act arising
out of Defendants' handling of a credit dispute arising
after Plaintiff obtained a Chapter 7 bankruptcy. See
Docket No. 1. Plaintiff initiated this case on December 22,
2016, id., and Experian filed an answer on February
7, 2017, Docket No. 5. The Court issued a scheduling order
setting a deadline to amend the pleadings for May 9, 2017.
Docket No. 12.
3, 2017, Plaintiff conducted his Rule 30(b)(6) deposition of
Experian. See Docket No. 31-5. On May 9, 2017,
Plaintiff moved to amend his complaint to, inter
alia, add class action claims. Docket No. 24. Due to a
dispute over Experian's errata to its deponent's
testimony, Plaintiff's motion for leave to amend was
denied without prejudice. Docket No. 29. The parties then
engaged in motion practice on the disputed errata, and that
dispute was resolved on November 8, 2017. Docket No.
64.Plaintiff then refiled his motion for leave
to amend by the new deadline set by the Court, Docket No. 66,
which is the matter now before the Court.
examine whether amendment is proper under the standards
outlined in Rule 15(a). Rule 15(a) provides that “[t]he
court should freely give leave [to amend] when justice so
requires, ” and there is a strong public policy in
favor of permitting amendment. Bowles v. Reade, 198
F.3d 752, 757 (9th Cir. 1999). As such, the Ninth Circuit has
made clear that Rule 15(a) is to be applied with
“extreme liberality.” Eminence Capital, LLC
v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)
(per curiam). Under Rule 15(a), courts consider
various factors, including: (1) bad faith; (2) undue delay;
(3) prejudice to the opposing party; (4) futility of the
amendment; and (5) whether the plaintiff has previously
amended the complaint. See Id. at 1052. These
factors do not carry equal weight, however, and prejudice is
the touchstone of the analysis. See id.
of the liberal policy in favor of amendment, the party
opposing the amendment bears the burden of showing why leave
to amend should be denied. See, e.g., Desert
Protective Council v. U.S. Dept. of the Interior, 927
F.Supp.2d 949, 962 (S.D. Cal. 2013) (citing Genentech,
Inc. v. Abbott Labs., 127 F.R.D. 529, 530-31 (N.D. Cal.
raises several arguments in opposition to the motion for
leave to amend, asserting that there has been undue delay in
seeking amendment, that it will be prejudiced by amendment,
and that amendment is futile. The Court addresses each
argument below in turn.
argues that some aspects of Plaintiff's
amendments could have been made sooner, and that
Plaintiff unduly delayed in that respect by not seeking such
amendment until the deadline to seek amendment, May 9, 2017.
See Docket No. 69 at 6-7. The Court is not persuaded.
Undue delay, standing alone, is not sufficient to justify
denying leave to amend, although it can be a factor that
undermines an attempt to amend the pleadings. See,
e.g., United States v. United Healthcare Ins.
Co., 848 F.3d 1161, 1184 (9th Cir. 2016). “A
strong presumption against a finding of undue delay exists
when a case is still in discovery, ” Hologram USA,
Inc. v. Pulse Evolution Corp., No. 2:14-cv-0772-GMN-NJK,
2015 WL 316900, at *3 (D. Nev. Jan. 23, 2015) (citing DCD
Programs, Ltd. v. Leighton, 833 F.2d 183, 187-88 (9th
Cir. 1987)). At the time Plaintiff sought leave to amend,
this case was in its early stages, with Experian having only
appeared a few months earlier and the discovery cutoff
several months in the distance. See Docket No. 5
(answer filed February 7, 2017); Docket No. 12 (setting
discovery cutoff for August 7, 2015). Such circumstances
militate strongly against a finding of undue delay, and
Experian's conclusory assertions that parts of the
proposed amended complaint could have been brought sooner are
insufficient to establish otherwise. Accordingly, the Court
finds there was no undue delay.
next argues that it is prejudiced by any amendment because
allowing the addition of class claims would expand the scope
of this case, resulting in added expense and delay. Docket
No. 69 at 8. The Court is not persuaded. Transforming an
individual action into a class action does not, in and of
itself, create the type of prejudice sufficient to deny leave
to amend. See, e.g., Presser v. Key Food Stores
Co-op, Inc., 218 F.R.D. 53, 56 (E.D.N.Y. 2003).
“While the additional class allegation will likely
increase some of the needed discovery and may add some time
for final disposition of the case, such is the case with most
any amendment to a pleading in which a claim is being
added.” Lopez v. City of Chicago, No. 01 C
1823, 2002 WL 31415767, at *3 (N.D. Ill. Oct. 25, 2002). As