1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANTHONY GREGG, et al., Case No. 23-cv-02760-AMO

8 Plaintiffs,

ORDER RE FURTHER BRIEFING

v. 9 Re: Dkt. Nos. 34, 35 10 BOHEMIAN CLUB, et al., Defendants. 11

12 13 Before the Court are motions to dismiss filed by both Pomella LLC (ECF 34) and 14 Bohemian Club (ECF 35). Plaintiffs failed to timely respond to the motions, a topic addressed 15 through the Court’s recent Order to Show Cause. See ECF 53. While the Court appreciates the 16 candor of Plaintiffs’ counsel in his acknowledgement of an erroneous and mistaken belief 17 regarding due dates (ECF 54 and ECF 54-1),1 the Court is disinclined to permit Plaintiffs to file a 18 late opposition brief. 19 The Court generally finds Defendants’ motions to dismiss meritorious. The remaining 20 question is whether leave to amend should be granted. Federal Rule of Civil Procedure 15(a)(2) 21 provides that the district court should “freely give leave when justice so requires” and “this policy 22 is to be applied with extreme liberality.” Herring Networks, Inc. v. Maddow, 8 F.4th 1148, 1160 23 (9th Cir. 2021) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 24 2001)). “In determining whether leave to amend is appropriate, the district court considers the 25 presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or 26 1 Contrary to the Court’ s direction, ECF 53, Plaintiffs included argument and submitted evidence 27 going to the merits of Defendants’ motions. ECF 54 and ECF 54-1. Plaintiffs’ inclusion of such 1 futility.” Herring Networks, 8 F.4th at 1161 (quoting Owens, 244 F.3d at 712). The last factor, 2 futility, is the one most relevant here, and it has not been addressed in the briefs before the Court. 3 Accordingly, the Court hereby ORDERS further briefing addressing only whether it is 4 || possible for Plaintiffs to state claims against these two Defendants if granted leave to amend or 5 || whether amendment would prove futile. Plaintiffs must file a brief of not more than three pages 6 addressing this issue on or before November 15, 2023. Defendants Pomella LLC and Bohemian 7 || Club may file responsive briefs of not more than three pages each on or before November 29, 8 || 2023. 9 IT IS SO ORDERED. 10 Dated: November 1, 2023

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ARACELI MARTINEZ-OLGUIN

13 United States District Judge © 15 16

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