Leave to amend may be denied because of undue delay, prejudice to the non-moving party, bad faith or futility of amendment
Leave to amend may be denied ( leave to amend may be denied where motion is made after inordinate delay, no satisfactory explanation is offered for the delay, and the amendment would prejudice the defendant); Ronzani v. Sanofi, S.A., 899 F.2d 195, 198 (2d Cir.1990) (Courts should grant leave to amend a complaint unless amendment would be futile or another valid ground for denial exists); S.S. Silberblatt, Inc. v. 3 East Harlem Pilot Block-Building 1 Housing Development Fund Co., 608 F.2d 28, 42 (2d Cir. 1979) ("if the [movant] has at least colorable grounds for relief, justice does so require unless the plaintiff is guilty of undue delay, or bad faith or unless permission to amend would unduly prejudice the opposing party"). See also Grochowski v. Phoenix Const., 318 F.3d 80, 86
The bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party
In assessing whether leave to amend is proper, the Court should consider whether the proposed amendment "would cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in futility or creates undue delay." Ascon- Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)."Unlike Rule 15(a)'s liberal amendment policy which focusses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s 'good cause' standard primarily considers the diligence of party seeking the amendment." Id. If the moving party delayed unnecessarily or was otherwise not diligent, good cause does not exist.
Whether the moving party knew or should have known the facts and theories raised in the original pleadings
Relevant to evaluating the delay issue is whether the moving party knew or should have known the facts and theories raised in the original pleadings." See Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990). Defendants contend that plaintiff was aware of the facts upon which it bases its proposed second claim almost two years ago. (Opp'n at 9-10.) According to defendants, plaintiff's initial disclosures reveal that plaintiff had calculated the alleged total number of paid attendees at Mr. Bolton's concerts for the relevant contractual time-period no later than May 21 or 22, 1997. (Id.) As to the proposed third claim, defendants contend that, because Winterland accompanied Mr. Bolton on all of his concert tours, it was aware at all times of the length of the gaps between concerts. (Opp'n at 10.)
Plaintiffs attempting to amend their complaints only after previous claims have either been dismissed or otherwise failed
New allegations totally altered the basis of the action in that they covered different acts, employees and time periods, and a motion for summary judgment was pending at the time motion to amend was made may be bad faith. cases relying on this theory of bad faith, including the cases cited to by defendants, involve plaintiffs attempting to amend their complaints only after previous claims have either been dismissed or otherwise failed. See Beverly Hills Bancorp v. Hine, 752 F.2d 1334, 1338 (refusing to allow bankruptcy trustee to amend pleadings to allege new theory of recovery after appellate court rejected his prior theory); Vine v. Beneficial Finance Co., 374 F.2d 627, 636-37 (2d. Cir. 1967) (denying leave to amend where plaintiff waited until after dismissal of prior complaint to seek leave to amend). In the instant case, Winterland's original claim for breach of contract has not been dismissed or otherwise been defeated. Therefore, defendants fail to show bad faith
There is abias toward granting motions for leave to amend as well as the mandate of Rule 15(a)
There is abias toward granting motions for leave to amend as well as the mandate of Rule 15(a) that leave to amend "shall be freely given when justice so requires. most federal appels courts have a requirement that district courts grant leave to amend with "extreme liberality"prejudice is generally regarded as the most important factor,.delay alone is not a sufficient reason to deny a plaintiff leave to amend a complaint. Hurn, 648 F.ad at 1254. In cases in which leave to amend has been denied based in part on undue delay, a more compelling mixture of factors has been present. Relevant to evaluating the delay issue is whether the moving party should have known the facts and theories raised in the original pleadings. If the moving party delayed unnecessarily or was otherwise not diligent, good cause does not exist. the Court's scheduling order "shall not be modified except upon a showing of good cause.mendments to pleadings should beallowed when the interests justice would be served.
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Howard Roitman, Esq.
8921 W. Sahara Ave.
Las Vegas, Nevada 89117
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