United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff New Enterprises, Ltd.'s
(“Plaintiff”) Motion to Amend (Doc. 60) pursuant
to Rule 15 of the Federal Rules of Civil Procedure
(“Rules”). The Court now rules on the motion.
filed a Complaint (Doc. 1) against Defendants SenesTech, Inc.
(“Defendant SenesTech”) and Roth Capital
Partners, LLC (“Defendant Roth;” together with
Defendant SenesTech, “Defendants”) on February
20, 2018. On December 3, 2018, this Court granted Defendant
SenesTech's Motion to Dismiss (Doc. 14) and Defendant
Roth's Motion to Dismiss (Doc. 30) without prejudice.
(See Doc. 57). Pursuant to this Court's Order
(Doc. 57) granting dismissal and its subsequent Order (Doc.
59) granting an extension of time, Plaintiff filed the
pending Motion to Amend (Doc. 60) on January 25, 2019. Along
with its Motion to Amend (Doc. 60), Plaintiff also filed its
proposed First Amended Complaint (Doc. 60-1) and a redline
version of the proposed First Amended Complaint against the
original Complaint (Doc. 60-2).
January 31, 2019, Defendant Roth filed its “Response
and Non-Opposition to Plaintiff's Motion to Amend”
(Doc. 63). On February 8, 2019, Defendant SenesTech filed a
Response (Doc. 64) in opposition to Plaintiff's Motion to
Amend, and Plaintiff filed a Reply (Doc. 66) on February 15,
15(a) governs motions to amend pleadings before trial. When a
party may not amend as a matter of course, Rule 15(a)(2)
states that “a 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).
Plaintiff filed the pending Motion outside Rule
15(a)(1)'s 21-day limit and Defendant SenesTech does not
give its written consent for the amendments, Plaintiff may
only amend its pleading with the Court's leave. See
Id. Although the Court has discretion to grant or deny a
party's motion for leave to amend a pleading, “Rule
15(a) declares that leave to amend shall be freely given when
justice so requires; this mandate is to be heeded.”
Foman v. Davis, 371 U.S. 178, 182 (1962) (internal
quotation marks and citations omitted). The Ninth Circuit
Court of Appeals provides that “this policy is to be
applied with extreme liberality.” Morongo Band of
Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.
extremely liberal policy in favor of amendment is not
completely without limitations. The Ninth Circuit has also
stated that a court “determines the propriety of a
motion to amend by ascertaining the presence of any of four
factors: bad faith, undue delay, prejudice to the opposing
party, and/or futility. Generally, this determination should
be made with all inferences in favor of granting the
motion.” Griggs v. Pace Am. Grp., Inc., 170
F.3d 877, 880 (9th Cir. 1999) (internal citations omitted).
“The party opposing amendment bears the burden of
showing prejudice, ” or one of the other reasons for
denying a motion to amend. DCD Programs, Ltd. v.
Leighton, 833 F.2d 183, 187 (9th Cir. 1987).
SenesTech opposes Plaintiff's Motion to Amend on the
bases of undue delay and futility. (Doc. 64 at 8, 10).
Because the Court will grant leave to amend without prejudice
to filing a motion to dismiss pursuant to 12(b)(6), the Court
will not analyze Defendant SenesTech's futility arguments
for purposes of this Order. Rather, the Court confines its
analysis to the other factors that determine the propriety of
a motion to amend.
SenesTech does not provide any allegations of bad faith in
its Response (Doc. 64), nor does the Court independently find
any evidence of bad faith herein. (See generally
Doc. 64; see also Doc. 66 at 2). Accordingly, the
Court finds that Plaintiff's attempt to amend its
original Complaint is not made in bad faith.