1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BD PERFORMING ARTS, Case No. 22-cv-02050-JSW

8 Plaintiff,

ORDER GRANTING MOTION FOR

9 v. LEAVE TO AMEND AND TAKING

MOTION TO DISMISS UNDER

10 B.A.C. MUSICAL INSTRUMENTS, LLC, SUBMISSION et al., Re: Dkt. Nos. 44, 47 11 Defendants.

12 13 This matter comes before the Court upon consideration of the motion for leave to amend 14 filed by Plaintiff BD Performing Arts (“Plaintiff”), and the motion to dismiss filed by Defendants 15 B.A.C. Musical Instruments, LLC (“B.A.C.”) and RMI, LLC (“RMI”) (collectively 16 “Defendants”).1 The Court has considered the parties’ papers, relevant legal authority, and the 17 record in this case, and it concludes the motions are suitable for disposition without oral argument. 18 The Court VACATES the hearing scheduled for June 24, 2022. 19 BACKGROUND AND ANALYSIS 20 Plaintiff filed its initial complaint on March 30, 2022 alleging Defendants violated the 21 Lanham Act, the Tariff Act, and California’s Unfair Competition Law, and brought a claim for 22 common law unfair competition. On April 4, 2022, Plaintiff filed a motion for a temporary 23 restraining order. The Court denied that motion, without prejudice, on April 25, 2022. The 24 relevant facts underlying this dispute are set forth in that Order, and the Court will not repeat them 25 here. (See Dkt. No. 43, “Order” at 1:20-4:18.) 26

27 1 Defendant Tianjin Jinbao Musical Instruments Co., Ltd. (“Jinbao”), a Chinese corporation, ] On April 29, 2022, Defendants filed a motion to dismiss on the ground that forum selection 2 || clauses in two agreements require this case to be heard in Kansas. Fourteen days later, on May 13, 3 2022, Plaintiff filed its motion for leave to file an amended complaint. Plaintiff has amended to, 4 inter alia, limit its claims to instruments manufactured and sold by Defendants after December 31, 5 || 2020, when an agreement between Plaintiffs defunct subsidiary and Jinbao expired. (See 6 || Proposed First Amended Complaint 4{ 2, 6.) 7 Federal Rule of Civil Procedure 15(a)(1)(B) expressly permits a plaintiff to amend as a 8 || matter of right within “21 days after service of a responsive pleading or 21 days after service of a 9 || motion under Rule 12(b), (e), or (f), whichever is earlier.” Defendants have not filed a responsive 10 || pleading and do not move to dismiss under Rule 12(b). Even if they had, Plaintiff filed its motion 11 fourteen days after Defendants moved to dismiss.” Although Plaintiff filed its motion out of an 12 abundance of caution, under Rule 15 it was entitled to amend as a matter of right. Therefore, the E 13 Court does not address whether the amendment would be futile. See, e.g., Ramirez v. Cty. of San 14 || Bernadino, 806 F.3d 1002, 1007 (9th Cir. 2015) (“[I]tit is clear that we routinely have viewed 3 15 || Rule 15(a)(1)’s ability to amend as a right, one which is exhausted or limited only by the 16 || restrictions set forth in the Rule itself.”). i 17 Accordingly, the Court GRANTS Plaintiff's motion. Although the Court could treat the Z 18 || motion to dismiss as moot, Defendants have argued that the FAC also must be dismissed based on 19 || forum non conveniens. Accordingly, the Court will analyze that motion based on the FAC, takes 20 || the motion under submission and will issue a ruling in due course. 21 IT ISSO ORDERED. 22 || Dated: June 17, 2022 / / / 4B JEFFREY, Sf WHIT 24 United Spits Distt Judge 25 / 26 27 2 The cases on which Defendants rely the motion did not address a situation where the 28 ae was entitled to amend as a matter of right, and the Court finds them distinguishable on