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`Case 2:22-cv-01170-JAT Document 58 Filed 05/09/23 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`Photography By Frank Diaz LLC,
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`Plaintiff,
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`v.
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`Friends of David Schweikert, et al.,
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`Defendants.
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`No. CV-22-01170-PHX-JAT
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`ORDER
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`Pending before the Court is Plaintiff’s Motion to Amend Complaint. (Doc. 43). The
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`Motion is unopposed. Also pending is Defendant’s Motion for Judgement on the Pleadings.
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`(Doc. 31). The Court will now rule on both Motions.1
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`I. BACKGROUND
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`This case arises out of claims of copyright infringement brought against
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`Congressman David Schweikert and his campaign committee, among others. (See Doc.
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`43). Plaintiff Photography by Frank Diaz alleges that Defendants used a copyrighted
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`photograph without permission in campaign advertisements during the 2020 election. (See
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`Doc. 43 at 3). Plaintiff asserts that the photograph, which is of Congressman Schweikert’s
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`primary opponent, was used in road signs and in “tens of thousands of mailers . . . .” (Id.).
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`This Court entered a Rule 16 scheduling order on September 25, 2022. (Doc. 25).
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`The order set the deadline for motions to amend of October 7, 2022. (Id.). No motion to
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`amend was filed before this deadline passed. On February 10, 2023, Defendants filed a
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`1 The request for oral argument is denied because oral argument would not have aided the
`Court’s decisional process.
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`Case 2:22-cv-01170-JAT Document 58 Filed 05/09/23 Page 2 of 7
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`motion for judgment on the pleadings. (Doc. 31). On March 13, Plaintiffs filed a Motion
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`to Amend. (Doc. 43). Defendants do not oppose the motion. (Doc. 46).
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`II. LEGAL STANDARD
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`Generally, Rule 15(a) governs a motion to amend pleadings to add claims or parties.
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`However, in the present case, Rule 16 also applies because Plaintiff’s requested leave to
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`amend the complaint after the Rule 16 Scheduling Order deadline expired. Therefore, it is
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`appropriate to discuss both Rule 15 and Rule 16.
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` Rule 15(a) provides in pertinent part:
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`(1) …A party may amend the party’s pleading once as a matter
`of course within:
`(A) 21 days after serving it, or
`(B) if the pleading is one to which a responsive pleading is
`required, 21 days after service of a responsive pleading or 21
`days after service of a motion under Rule 12(b), (e), or (f),
`whichever is earlier.
`(2) …In all other cases, a party may amend its pleading only
`with the opposing party’s written consent or the court’s leave.
`The court should freely give leave when justice so requires.
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`Fed. R. Civ. P. 15(a).
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` Although the decision whether to grant or deny a motion to amend is within the
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`trial court’s discretion, “Rule 15(a) declares that leave to amend ‘shall be freely given when
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`justice so requires’; this mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182
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`(1962). “In exercising its discretion with regard to the amendment of pleadings ‘a court
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`must be guided by the underlying purpose of Rule 15—to facilitate decision on the merits
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`rather than on the pleadings or technicalities.’ Thus, ‘Rule 15’s policy of favoring
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`amendments to pleadings should be applied with extreme liberality.’” Eldridge v. Block,
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`832 F.2d 1132, 1135 (9th Cir. 1987) (citations omitted) (quoting United States v. Webb,
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`655 F.2d 977, 979 (9th Cir. 1981)). “Generally, this determination should be performed
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`with all inferences in favor of granting the motion.” Griggs v. Pace Am. Grp., Inc., 170
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`F.3d 877, 880 (9th Cir. 1999) (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186
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`(9th Cir. 1987)).
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` The liberal policy in favor of amendments, however, is subject to limitations. After
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`the defendant files a responsive pleading, leave to amend is not appropriate if the
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`Case 2:22-cv-01170-JAT Document 58 Filed 05/09/23 Page 3 of 7
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`“amendment would cause prejudice to the opposing party, is sought in bad faith, is futile,
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`or creates undue delay.” Madeja v. Olympic Packers, 310 F.3d 628, 636 (9th Cir. 2002)
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`(quoting Yakima Indian Nation v. Wash. Dep’t of Revenue, 176 F.3d 1241, 1246 (9th Cir.
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`1999)). “The party opposing amendment bears the burden of showing prejudice,” futility,
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`or one of the other permissible reasons for denying a motion to amend. DCD Programs,
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`Ltd., 833 F.2d at 187; see also Richardson v. United States, 841 F.2d 993, 999 (9th Cir.
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`1988) (stating that leave to amend should be freely given unless opposing party makes “an
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`affirmative showing of either prejudice or bad faith.”).
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` Prejudice can result where a defendant would be forced to participate in additional
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`discovery. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). Extending
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`discovery can also create undue delay. Solomon v. N. Am. Life & Cas. Ins. Co., 151 F.3d
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`1132, 1139 (9th Cir. 1998). Regarding futility, “[a] district court does not err in denying
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`leave to amend where the amendment would be futile . . . or would be subject to dismissal.”
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`Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (citation omitted); see also Miller
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`v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (“A motion for leave to amend
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`may be denied if it appears to be futile or legally insufficient.”). Similarly, a motion for
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`leave to amend is futile if it can be defeated on a motion for summary judgment. Gabrielson
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`v. Montgomery Ward & Co., 785 F.2d 762, 766 (9th Cir. 1986). “However, a proposed
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`amendment is futile only if no set of facts can be proved under the amendment to the
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`pleadings that would constitute a valid and sufficient claim or defense.” Miller, 845 F.2d
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`at 214.
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` Rule 16, on the other hand, applies to pretrial conferences and scheduling
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`orders. This Rule provides, in pertinent part:
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`(b)(1) … Except in categories of actions exempted by local
`rule, the district judge . . . must issue a scheduling order:
`(A) after receiving the parties’ report under Rule 26(f); or
`(B) after consulting with the parties’ attorneys and any
`unrepresented parties at a scheduling conference.
`...
`(3) …The scheduling order must limit the time to join other
`parties, amend the pleadings, complete discovery, and file
`motions.
`...
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`Case 2:22-cv-01170-JAT Document 58 Filed 05/09/23 Page 4 of 7
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`(4) …A schedule may be modified only for good cause and
`with the judge’s consent.
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`Fed. R. Civ. P. 16(b). “Unlike Rule 15(a)’s liberal amendment policy which focuses on the
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`bad faith of the party seeking to interpose an amendment and the prejudice to the opposing
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`party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party
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`seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th
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`Cir. 1992). Generally, to meet its burden under Rule 16’s “good cause” standard, the
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`movant may be required to show:
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`(1) that [the movant] was diligent in assisting the Court in
`creating a workable Rule 16 [O]rder; (2) that [the movant’s]
`noncompliance with a Rule 16 deadline occurred or will occur,
`notwithstanding [the movant’s] diligent efforts to comply,
`because of the development of matters which could not have
`been reasonably foreseen or anticipated at the time of the Rule
`16 scheduling conference; and (3) that [the movant] was
`diligent in seeking amendment of the Rule 16 [O]rder, once it
`became apparent that [the movant] could not comply with the
`[O]rder.
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`Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (citations omitted). The
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`Ninth Circuit has also recognized that, “[t]he district court may modify the pretrial schedule
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`‘if it cannot reasonably be met despite the diligence of the party seeking the extension.’”
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`Johnson, 975 F.2d at 609. “[C]arelessness is not compatible with a finding of diligence and
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`offers no reason for a grant of relief[,]” however. Id. “Although the existence or degree of
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`prejudice to the party opposing the modification might supply additional reasons to deny a
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`motion, the focus of the inquiry is upon the moving party’s reasons for seeking
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`modification. If that party was not diligent, the inquiry should end.” Id. (citations omitted).
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` With respect to the interplay between Rules 16 and 15(a), “[a]s the Ninth Circuit
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`explained in Johnson . . . once the district court has filed a pretrial scheduling order
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`pursuant to Rule 16 . . . a motion seeking to amend pleadings is governed first by Rule
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`16(b), and only secondarily by Rule 15(a).” Jackson, 186 F.R.D. at 607; see also Coleman
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`v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000); Forstmann v. Culp, 114 F.R.D.
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`83, 85 (M.D.N.C. 1987) (finding that a party seeking to amend a pleading after the
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`scheduling order date must first show “good cause” for not amending the complaint sooner,
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`Case 2:22-cv-01170-JAT Document 58 Filed 05/09/23 Page 5 of 7
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`and if “good cause” is established, the party must demonstrate that the amendment was
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`proper under Rule 15). “If [the Court] considered only Rule 15(a) without regard to Rule
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`16(b), [it] would render scheduling orders meaningless and effectively would read Rule
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`16(b) and its good cause requirement out of the Federal Rules of Civil Procedure.” Sosa v.
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`Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998). Accordingly, the Court will first
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`evaluate Plaintiffs’ Motion under Rule 16, and then, if necessary, under Rule 15(a).
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`III. ANALYSIS
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`a. Motion For Leave To Amend To Add An Additional Claim
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`Through its motion to amend, Plaintiff seeks to add an additional claim against
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`Defendants for intentionally removing “copyright management information” from the
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`photo of Congressman Schweikert’s primary opponent. (Doc. 43 at 10). Plaintiff seeks to
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`claim that Defendants directed a third party to remove a watermark from the photo to
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`conceal the fact that the photo was protected by copyright. (Id. at 11). Plaintiff asserts that
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`there is good cause to modify the scheduling order to allow it to amend its complaint
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`because it has met all the requirements of the Jackson standard. This Court agrees.
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`First, as Plaintiff states, it was diligent in assisting the Court in creating a workable
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`Rule 16 order. (See Id. at 13). Nothing in the record indicates that Plaintiff failed to assist
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`the Court in this regard. Second, Plaintiff’s failure to meet the deadline set out in the
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`scheduling order occurred because of Defendant’s delay in responding to requests for
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`production. (See id.). Consequently, the failure to comply occurred because of the
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`“development of matters which could not have been reasonably foreseen or anticipated at
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`the time of the Rule 16 scheduling conference . . . .” See Jackson, 186 F.R.D. at 608.
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`Plaintiff knew that someone had removed the watermark from the photograph and made a
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`request for production seeking that information within five days of the start of discovery.
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`(See Doc. 43 at 13). Plaintiff tried on multiple occasions to get Defendants to comply with
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`discovery, including serving two deficiency letters. (Id. at 8). It was not until February 27,
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`2023 that Plaintiff was able to take the deposition of a witness who produced information
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`relating to the person that was directed to remove the watermark. This Court finds that at
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`Case 2:22-cv-01170-JAT Document 58 Filed 05/09/23 Page 6 of 7
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`the time of the Rule 16 conference Plaintiff had no reason to believe that it would not
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`receive this information in a timely manner. Finally, Plaintiff sought leave to amend the
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`complaint only two weeks after learning this information. It therefore was diligent in
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`seeking leave to amend upon realizing it would not be in compliance with the scheduling
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`order.
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`Turning to the Rule 15 analysis, given the liberal nature of the rule and the fact that
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`the motion to amend is unopposed, the motion will be granted. In this analysis, the burden
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`shifts to the Defendants to show why leave to amend should be denied. See DCD Programs,
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`Ltd., 833 F.2d at 187. Leave to amend should only be denied if it would result in prejudice,
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`was sought in bad faith, would be futile, or would cause undue delay. See Madeja, 310
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`F.3d at 636. Here, again, Defendants do not oppose the motion. Additionally granting the
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`motion would not prejudice Defendants. Because the additional claim is a copyright claim,
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`granting leave to add this claim would not significantly expand the scope of discovery in a
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`meaningful way. Furthermore, this Court does not find significant prejudice due to the fact
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`that Defendants have moved for judgment on the pleadings, as they would be free to largely
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`file the same motion. Additionally, there is no indication that this motion to amend was
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`made in bad faith. And the motion presents a claim that may have merit. Finally, this would
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`not cause any significant delay in this case. Consequently, this Court finds that the Rule 16
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`and Rule 15 standards are satisfied. Therefore, it will grant Plaintiff’s Motion to Amend
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`Complaint.
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`b. Motion For Judgement On The Pleadings
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`Given that this Court is granting Plaintiff’s Motion to Amend Complaint,
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`Defendants’ Motion for Judgment on the Pleadings will be denied without prejudice as
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`moot. See Ogunsalu v. Nair, 264 Fed. Appx. 672, 674 (9th Cir. 2008) (noting that any
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`motions that are directed at superseding pleadings “no longer perform[] any function” and
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`are treated as nonexistent.) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th
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`Cir.1992)).
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`Case 2:22-cv-01170-JAT Document 58 Filed 05/09/23 Page 7 of 7
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`IV. CONCLUSION
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`Accordingly,
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`IT IS ORDERED that Plaintiff’s Unopposed Motion to Amend Complaint, (Doc.
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`43), is granted. Plaintiff must file the amended complaint within 5 days of the date of this
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`Order. If Plaintiff fails to file the amended complaint within this deadline, the original
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`complaint will remain the operative pleading in this case.
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`IT IS FURTHER ORDERED that Defendants’ Motion for Judgment on the
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`Pleadings, (Doc. 31), is denied, without prejudice, as moot.
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`Dated this 9th day of May, 2023.
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