United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION TO AMEND
L. ROBART United States District Judge.
the court is Plaintiff Kische USA LLC's
(“Kische”) second motion for leave to amend its
complaint. (2d MTA (Dkt. # 66).) The court has reviewed the
motion, Defendants Ali Simsek, Diane Walker, and JD Stellar
LLC's (“JD Stellar”) (collectively,
“Stellar Defendants”) opposition to the motion
(Resp. (Dkt. # 68)), Kische's reply (Reply (Dkt. # 69)),
the relevant portions of the record, and the applicable law.
Being fully advised,  the court GRANTS Kische's motion for
the reasons set forth below.
February 4, 2016, Kische brought this suit against Mr.
Simsek, Ms. Walker, attorney Kevin Costanza,  their respective
marital communities, and JD Stellar. (See Compl.
(Dkt. # 1) at 1.) Against Stellar Defendants, Kische
originally alleged (1) unfair competition under the Lanham
Act; (2) false description under the Lanham Act; (3) common
law passing off; (4) common law misappropriation of trade
secrets; (5) violation of Washington's Uniform Trade
Secrets Act (“UTSA”), RCW ch. 19.108; (6)
“common law injury to business reputation”; (7)
breach of contract; (8) breach of fiduciary duty; (9)
intentional interference with contractual relations; (10)
conversion; (11) business opportunity fraud under RCW ch.
19.110; and (12) violation of the federal Racketeer
Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1961-68.
(Id. at 12-19.) Against Mr. Costanza, Kische alleged
legal malpractice based on theories of negligence and breach
of fiduciary duty. (Id. at 19-20.)
the initial defendants moved to dismiss the original
complaint for failure to state a claim (1st Stellar MTD (Dkt.
# 18); 1st Costanza MTD (Dkt. # 28)), and the court granted
in part and denied in part Stellar Defendants' motion to
dismiss and granted Mr. Costanza's motion to dismiss
(6/29/16 Order (Dkt. # 39)). Specifically, the court
dismissed all of Kische's claims except for breach of
contract, breach of fiduciary duty, and tortious
interference. (Id. at 18, 22.) The court's
dismissal was without prejudice because the court concluded
that “[t]hough Kische has not plausibly pleaded many of
its claims, the court cannot say on the record before it that
leave to amend would be futile or that any other relevant
factors weigh against granting leave to amend.”
(Id. at 31.)
already having the court's leave to amend, on July 19,
2016, Kische filed a motion to amend its complaint.
(See 1st MTA (Dkt. # 42).) Kische sought to amend
its complaint “with additional claims, case law[, ] and
facts to substantiate [Kische's] claims against
Defendants.” (Id. at 1.) Kische argued that
“[s]ome facts and law were not originally included in
the verified complaint, and, because of this, the [c]ourt was
not able to find facts sufficient to support multiple claims
as stated.” (Id. at 2.) Kische further stated
that it knew some of those “new” facts at the
time it filed its first complaint, while it became aware of
other “new” facts during discovery.
(Id.) Kische also stated that it omitted from its
proposed amended complaint “claims for which there may
be insufficient corroborating evidence.” (Id.
at 2; see also Id. at 4 (stating that Kische omitted
its RICO claim).) None of the defendants opposed Kische's
first motion for leave to amend. (Costanza Resp. to 1st MTA
(Dkt. # 48); Stellar Resp. to 1st MTA (Dkt. # 51).)
court permitted Kische to file its proposed amended
complaint. (See 8/1/16 Order (Dkt. # 52); Am. Compl.
(Dkt. # 53).) In its amended complaint, Kische asserted 12
causes of action-10 against Stellar Defendants and three
against Mr. Costanza. (Am. Compl.) Against Mr. Costanza,
Kische alleged legal malpractice on a negligence theory,
breach of fiduciary duty, and civil conspiracy. (Id.
¶¶ 14.1-14.6, 15.1-15.4.) Against Stellar
Defendants, Kische alleged (1) a trademark infringement claim
under the Lanham Act; (2) a false advertising claim under the
Lanham Act; (3) a trademark dilution claim under the Lanham
Act; (4) violation of Washington's Consumer Protection
Act (“CPA”), RCW ch. 19.86; (5) breach of
contract; (6) breach of fiduciary duty; (7) tortious
interference with business relations; (8) conversion; (9)
fraud; and (10) civil conspiracy. (Id. ¶¶
the defendants then again moved to dismiss Kische's
amended complaint, with the exception of the claims that
survived Defendants' first motions to dismiss.
(See 2d Costanza MTD (Dkt. # 54); 2d Stellar MTD
(Dkt. # 56).) The court dismissed without prejudice
Kische's claims against Stellar Defendants for trademark
infringement of the Marseille and Dantelle marks, false
advertising, trademark dilution, violation of the CPA, fraud,
and civil conspiracy, but the court declined to dismiss
Kische's claims for breach of fiduciary duty and
conversion. (See 12/13/16 Order at 43.) The court
also dismissed Kische's claims against Mr. Costanza: the
legal malpractice and breach of fiduciary claims with
prejudice, and the civil conspiracy claim without prejudice.
(Id. at 43-44.)
second order of dismissal, the court stated that the scope of
the court's leave to amend was limited and that
“Kische may not add claims” to an amended
complaint without first obtaining the court's leave.
(Id. at 43.) The court ordered Kische to file any
second amended complaint no later than January 3, 2017.
than filing a second amended complaint within the scope of
the court's December 13, 2016, order, Kische filed a
second motion to amend its complaint. (See 2d MTA.)
In doing so, Kische failed to comply with Local Civil Rule
15, which requires a party moving to amend its complaint to
“indicate on the proposed amended pleading how it
differs from the pleading that it amends by bracketing or
striking through the text to be deleted and underlining or
highlighting the text to be added.” Local Rules W.D.
Wash. LCR 15. Accordingly, the court ordered Kische to file a
proposed amended complaint that complied with Local Civil
Rule 15. (2/3/17 Order (Dkt. # 70).) Kische filed a proper
proposed amended complaint the same day. (Prop. SAC.) The
court now addresses Kische's second motion to amend.
Rule of Civil Procedure 15 (a)(2) requires the court to
“freely give” leave to amend a pleading
“when justice so requires.” Fed.R.Civ.P.
15(a)(2). This policy is “applied with extreme
liberality.” Owens v. Kaiser Found. Health Plan,
Inc., 244 F.3d 708, 712 (9th Cir. 2001); see also
DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th
Cir. 1987); United States v. Webb, 655 F.2d 977, 979
(9th Cir. 1981). It is within the court's discretion
whether to grant or deny leave to amend. See Webb,
655 F.2d at 979. “In exercising this discretion, a
court must be guided by the underlying purpose of Rule 15 to
facilitate a decision on the merits, rather than on the
pleadings or technicalities.” Id. Accordingly,
the court analyzes five factors in ruling on a motion for
leave to amend: (1) bad faith, (2) undue delay, (3) prejudice
to the opposing party, (4) futility of amendment, and (5)
whether the party has previously amended its pleading.
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