GS Holistic, LLC v. J's Smoke Shop ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GS HOLISTIC, LLC, Case No. 1:23-cv-00286-ADA-SAB 12 Plaintiff, ORDER VACATING JULY 26, 2023 HEARING, GRANTING PLAINTIFF’S 13 v. MOTION FOR LEAVE TO AMEND, AND ORDERING PLAINTIFF TO FILE 14 J'S SMOKE SHOP, et al., AMENDED COMPLAINT 15 Defendants. (ECF No. 11) 16 FIVE DAY DEADLINE 17 I. 18 INTRODUCTION 19 Plaintiff filed this action on February 25, 2023, against J's Smoke Shop d/b/a J's Smoke 20 Shop, and John Doe, alleging trademark infringement, counterfeiting, and false designation of 21 origin and unfair competition. (ECF No. 1.) Currently pending before the Court is Plaintiff’s 22 motion to file a first amended complaint, filed on June 16, 2023. (ECF No. 11.) The motion is 23 currently set for hearing on July 26, 2023, at 10:00 a.m. in Courtroom 9. The period in which to 24 have filed a timely opposition has now passed. L.R. 230(c). Having considered the moving 25 papers, the lack of opposition, and the Court’s file, the Court finds this matter suitable for 26 decision without oral argument, shall vacate the hearing set for July 26, 2023, and grant 27 Plaintiff’s motion to amend. See Fed. R. Civ. P. 15; Local Rule 230(g). / / / 1 II. 2 LEGAL STANDARD 3 Twenty-one days after a responsive pleading or a motion to dismiss is filed, a party may 4 amend only by leave of the court or by written consent of the adverse party. Fed. R. Civ. P. 5 15(a)(1)-(2). “Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice 6 so requires.’ ” Amerisource Bergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 7 2006) (quoting Fed. R. Civ. P. 15(a)); see also Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 8 1048, 1052 (9th Cir. 2003) (noting leave should be granted with “extreme liberality”) (quoting 9 Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.2001)). Leave to amend 10 under Rule 15 is “within the sound discretion of the trial court,” and “[i]n exercising this 11 discretion, a court must be guided by the underlying purpose of Rule 15 to facilitate decision on 12 the merits, rather than on the pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 13 979 (9th Cir. 1981). 14 In determining whether to grant leave to amend, a court is to consider five factors: “(1) 15 bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) 16 whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 17 808 (9th Cir. 2004). The factors are not weighed equally. Bonin v. Calderon, 59 F.3d 815, 845 18 (9th Cir. 1995). “Futility of amendment can, by itself, justify the denial of a motion for leave to 19 amend.” Id. Undue delay, “by itself . . . is insufficient to justify denying a motion to amend.” 20 Owens, 244 F.3d at 712 (quotation marks omitted) (quoting Bowles v. Reade, 198 F.3d 752, 21 757-58 (9th Cir. 1999)). “[I]t is the consideration of prejudice to the opposing party that carries 22 the greatest weight.” Eminence Capital, 316 F.3d at 1052. The burden to demonstrate prejudice 23 falls upon the party opposing the amendment. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 24 187 (9th Cir. 1987). “Absent prejudice, or a strong showing of any of the remaining [ ] factors, 25 there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id. 26 III. 27 DISCUSSION 1 | discovered that the correct Defendants are Shaibi Abdulqawi d/b/a J’s Smoke Shop and Shaibi 2 | Abdulqawi. Through the current motion, Plaintiff requests permission to file an amended 3 | complaint to substitute the correct Defendants. Plaintiff's amended complaint is attached as 4 | exhibit A to the motion. Plaintiff argues that allowing Plaintiff to file the amended complaint at 5 | this time will allow the case to move forward with all alleged infringers and preserve this Court’s 6 | time and resources. 7 The Court finds no bad faith, no undue delay, no apparent prejudice to the opposing 8 | party, no futility of amendment, and Plaintiff has not previously amended his complaint. 9 | Consequently, finding that none of the foregoing factors weigh against granting Plaintiff leave to 10 | amend, and given the motion was not opposed through any opposition brief filed by the deadline 11 | to file an opposition, the Court finds granting leave to amend appropriate. See Fed. R. Civ. P. 12 | 15(a); Eminence Capital, 465 F.3d at 951; DCD Programs, 833 F.2d at 187 (“Absent prejudice, 13 | or a strong showing of any of the remaining [ ] factors, there exists a presumption under Rule 14 | 15(a) in favor of granting leave to amend.”’). 15 IV. 16 ORDER 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. The hearing on Plaintiff's motion for leave to file an amended complaint set for 19 July 26, 2023, at 10:00 a.m. in Courtroom 9 (ECF No. 11) is VACATED; 20 2. Plaintiff's motion to amend (ECF No. 11) is GRANTED; and 21 3. Within five (5) days of service of this order, Plaintiff shall file the proposed 22 amended complaint (ECF No. 11-1) on the docket. 23 24 IT IS SO ORDERED. F- 2 ee 95 Dated: _ July 14, 2023 " UNITED STATES MAGISTRATE JUDGE 27 28