United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Defendant S&C Electric Company ("S&C") has filed a motion for leave to amend its counterclaim. Doc. 32. Plaintiff First Power Corporation ("First Power") has filed a motion for leave to file a supplemental response to Defendant's motion. Doc. 46. The motions are fully briefed. The Court will grant Defendant's motion and deny Plaintiff's motion.
I. Legal Standard.
Rule 15 makes clear that the Court "should freely give leave [to amend] when justice so requires." Fed.R.Civ.P. 15(a)(2). The policy in favor of leave to amend must not only be heeded, see Foman v. Davis, 371 U.S. 178, 182 (1962), it must be applied with "extreme liberality, " see Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 880 (9th Cir. 2001). This liberality "is not dependent on whether the amendment will add causes of action or parties." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). The Court may deny a motion to amend if there is a showing of undue delay or bad faith on the part of the moving party, undue prejudice to the opposing party, or futility of the proposed amendment. See Foman, 371 U.S. at 182. Generally, however, "this determination should be performed with all inferences in favor of granting the motion." Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999).
S&C moves to amend its Answer to include additional counterclaims for fraud and trademark infringement. Doc. 33-1, ¶¶ 36-61. First Power opposes addition of the fraud claim. Doc. 40 at 2. It argues that the claim is futile and that S&C failed to plead it with particularity under Rule 9(b). In its fraud claim, S&C alleges the following:
37. First power represented to S&C that it would jointly develop and participate in mutually beneficial opportunities, transactions, and arrangements as set forth in Paragraph 2 of the Agreement.
38. At the time that First Power made the representation, that representation was material and false and First Power knew it was false at the time it was made.
39. Indeed, First Power never intended to abide by its commitment. First Power made the representation with the intent and expectation that S&C would rely and act on it in a manner reasonably contemplated.
40. S&C had a right to rely on First Power's representation.
41. S&C in fact relied on First Power's representation when deciding to enter into the Agreement.
42. As a result of First Power's intentional misrepresentation, S&C has been damaged and is entitled to compensation for those damages.
Doc. 33-1, ¶¶ ...