1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TIMOTHY HUNT LEE, Case No. 20-cv-07053-AGT

8 Plaintiff, ORDER DISCHARGING ORDER TO

SHOW CAUSE, GRANTING LEAVE

9 v. TO FILE SECOND AMENDED

COMPLAINT, TERMINATING

10 CLEAR BLUE SPECIALTY INSURANCE DEFENDANT BERKLEY INSURANCE COMPANY, et al., COMPANY’S MOTION TO DISMISS 11 AS MOOT Defendants. 12

13 On December 23, 2020, defendant Berkley Insurance Company (“Berkley”) filed a motion 14 to dismiss plaintiff’s first amended complaint. ECF No. 21. Plaintiff did not file a timely 15 opposition and instead, on January 12, 2021, plaintiff filed a purported second amended 16 complaint, ECF No. 23, without leave of court or written consent from the opposing parties as 17 required by Federal Rule of Civil Procedure 15(a)(2). Berkley objected to the second amended 18 complaint, ECF No. 24, and on January 20, the Court ordered plaintiff to show cause why the 19 second amended complaint should not be stricken for failure to comply with Rule 15(a)(2), ECF 20 No. 25 (“OSC”). Plaintiff filed a timely response to the OSC, which explains that plaintiff’s 21 counsel “made a procedural error” by filing the second amended complaint without a stipulation or 22 court order, and requests that plaintiff be given leave to amend. ECF No. 28. Berkley responds 23 that the Court should deny leave to amend because the proposed amendment is futile as to 24 Berkley. ECF No. 29; see also ECF No. 24 at 2–3. Specifically, Berkley argues that the proposed 25 second amended complaint, although containing “material new matter,” ECF No. 24 at 2, remains 26 deficient because it fails to adequately allege notice to Berkley during the policy period, ECF No. 27 29 at 3–4. ] be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the 2 merits.” Allen vy. Bayshore Mall, No. 12-cv-02368-JST, 2013 WL 6441504, at *5 (N.D. Cal. Dec. 3 9, 2013) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). For this reason, denial of a request 4 || for leave to amend on the ground of futility “is rare and courts generally defer consideration of 5 challenges to the merits of a proposed amended pleading until after leave to amend is granted and 6 || the amended pleading is filed.” Oracle Am., Inc. v. Hewlett Packard Enter. Co., No. 16-cv- 7 || 01393-JST, 2017 WL 3149297, at *4 (N.D. Cal. July 25, 2017) (citation omitted). At this point, 8 || without the benefit of formal briefing on the sufficiency of plaintiff's new allegations regarding 9 || notice, the Court cannot say as a matter of law that the amendment would be futile. The Court 10 || therefore declines to deny leave to amend on that basis. 11 Having considered the other relevant factors in deciding whether to grant leave to amend, 12 || seelnre W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013), and g 13 || that Rule 15(a)(2) “is to be applied with extreme liberality,” Owens v. Kaiser Found. Health Plan, 14 || Jnc., 244 F.3d 708, 712 (9th Cir. 2001), with “all inferences [drawn] in favor of granting [leave to 3 15 amend],” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999), the Court grants a 16 || plaintiff leave to file the second amended complaint. Berkley’s motion to dismiss the first 3 17 || amended complaint is terminated as moot. 18 Plaintiff shall refile the second amended complaint at ECF No. 23 in compliance with Civil 19 || Local Rule 5.1(e)(2) by February 23, 2021. The initial case management conference currently 20 scheduled for March 5, 2021 is continued to March 26, 2021 at 2:00 p.m. 21 IT ISSO ORDERED. 22 || Dated: February 19, 2021 23

ALEX G. TSE

24 United States Magistrate Judge 25 26 27 28