United States District Court, D. Nevada
MOTION TO AMEND [ECF NO. 118]
FERENBACH, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Interior Electric Incorporated
Nevada's Motion for Leave to Amend Complaint. (ECF No.
118). For the reasons discussed below, Plaintiff's motion
originally brought breach of contract, breach of the implied
covenant of good faith and fair dealing, claim against bond
under NRS 108.2421, violation of NRS 624.624, copyright
infringement, removal or alteration of copyright management
information, breach of fiduciary duty, intentional
interference with prospective economic advantage,
misappropriation of trade secrets, conversion, unjust
enrichment, fraud or intentional misrepresentation, negligent
misrepresentation, quantum meruit, promissory estoppel, civil
conspiracy, concert of action, and aiding and abetting claims
against Defendants T.W.C. Construction, Travelers Casualty
and Surety Company of America, Matthew Ryba, Gustavo
Baquerizo, Clifford Anderson, Power Up Electric Company, BAMM
Electric, Prologis, AML Properties, AML Development 3, LaPour
Partners, Don Fisher, Philcor T.V. & Electronic Leasing,
QED, and Turtle & Hughes. (ECF No. 1).
October 22, 2018, the Court dismissed several claims without
prejudice: all claims against Turtle & Hughes, Matthew
Ryba, AML Development 3, AML Properties, Don Fisher, and
LaPour Partners; and the intentional interference with
prospective economic advantage claim as to T.W.C.
Construction. (ECF No. 81). The Court also dismissed the
concert of action claim with prejudice. (Id.). The
Court stated that, “[i]f plaintiff has facts to support
claims against Defendants Turtle & Hughes; AML
Development 3, LLC; AML Properties, Inc.; Don Fisher; LaPour
Partners, Inc.; Matthew Ryba; T.W.C. Construction, Inc.;
and/or Travelers Casualty and Surety Company of America, it
should file a proper motion for leave to amend.”
(Id.). The Court also granted a stipulation to
dismiss all claims against Prologis without prejudice. (ECF
now moves to amend its complaint to add
(1) additional allegations to demonstrate Prologis'
knowledge of infringing use of Interior Electric Nevada's
intellectual property; (2) allegations against Ryba and
Wilmer to assert claims for intentional interference with
prospective economic advantage; (3) new indirect copyright
infringement claims against Prologis, TWC, Baquerizo, and the
ROE and DOE defendants; (4) new claims for deceptive trade
practices; (5) a claim for declaratory relief; and, generally
(6) new factual allegations to provide context and satisfy
federal pleading standards
(ECF No. 118 at 3). The proposed amended complaint adds
Defendant Mark Wilmer and removes AML Properties, AML
Development 3, and LaPour Partners as Defendants. (ECF No.
118-1 at 2-3). In addition to the changes made to the
original claims, the proposed amended complaint adds claims
for contributory infringement, vicarious infringement, fraud
in the inducements, deceptive trade practices, and
declaratory relief and removes the negligent
misrepresentation and concert of action claims. (Id.
at 52-53, 60-61).
asserts that its motion to amend is timely, the Defendants
will not be prejudiced by the amendment, and the amendments
will not be futile. (ECF No. 118 at 5-6). The only Defendants
to file a response were T.W.C. Construction and Travelers
Casualty and Surety Company of America. (ECF No. 121). These
Defendants filed a Limited Opposition, asserting the proposed
amended complaint “includes claims which the Court
previously dismissed and which deficiencies have not been
cured.” (Id. at 1-2). However,
“Defendants understand that motions to amend are freely
granted and, therefore, believe that a motion to dismiss is
the more appropriate vehicle to challenge the legal validity
of those claims.” (Id. at 2).
party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). “Five factors
are taken into account to assess the propriety of a motion
for leave to amend: bad faith, undue delay, prejudice to the
opposing party, futility of amendment, and whether the
plaintiff has previously amended the complaint.”
Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.
2004). In addition, under LR 7-2(d), “[t]he failure of
an opposing party to file points and authorities in response
to any motion…constitutes a consent to the granting of
Defendants did not oppose Plaintiff's motion, except for
one limited opposition that acknowledged leave to amend is
freely granted, Defendants have consented to the Court
granting the motion. The Court also finds grounds to grant
Plaintiff leave to amend its complaint. There is no apparent
bad faith or undue delay in the motion for leave to amend.
The amendments do not appear to prejudice Defendants.
Plaintiff's amendments do not appear to be futile, and
this is Plaintiff's first motion for leave to amend the
and for good cause shown, IT IS ORDERED that Plaintiff's
Motion for Leave to Amend Complaint (ECF No. 118) is GRANTED.
FURTHER ORDERED that Defendants have until May 13, 2019 to
file an ...