The opinion of the court was delivered by: Judge Cathy Bissoon
Subject to the instructions below, Plaintiff's Motion for Leave to Amend (Doc. 13) will be granted, and Defendants' Motion to Dismiss (Doc. 5) will be denied without prejudice.
In response to Defendants' Motion to Dismiss, Plaintiff has moved for leave to amend his Complaint. Plaintiff's request came less than two months after the filing of Defendants' Motion to Dismiss, and, unsurprisingly, Defendants make no effort to demonstrate undue delay or prejudice. Instead, Defendants resist amendment based on futility. See Defs.' Opp'n Br. (Doc. 17) at 1.
In the undersigned's view, Defendants' arguments regarding futility currently do not present a clear-cut basis for resolving this case. Accordingly, and because leave to amend otherwise is freely given, Plaintiff will be permitted to amend his Complaint.
In filing his amended complaint, Plaintiff should remove any inviable claims. Cf. Defs.' Opp'n Br. at 2-3, 8-9 (noting Plaintiff's proposed addition of ERISA plan as defendant, but his failure to withdraw claims regarding other defendants against whom recovery purportedly cannot be had). Given Defendants' numerous and varied arguments for dismissal, it is important for counsel to narrow the parties' disputes to the extent possible. Plaintiff's counsel specifically is directed to carefully review the arguments proffered by Defendants when crafting his amended complaint.
In addition, given that Plaintiff twice has been presented with Defendants' arguments for dismissal -- once within the context of the original Complaint, and once in response to Plaintiff's currently proposed amended complaint (as attached to his Motion for Leave) -- the Court does not anticipate granting further opportunities for amendment. Under the circumstances, Plaintiff must be prepared to make his last, best efforts to state claims upon which relief may be granted, and the amendment deadline established herein has been extended to accommodate the above instructions.
Finally, once Plaintiff has filed his amended complaint, Defendants may renew their motion to dismiss. In responding to Defendants' renewed motion, if Plaintiff believes that additional information is required to properly oppose some or all aspects of Defendants' arguments, Plaintiff shall identify the discovery and/or additional information, if any, he believes is necessary, and provide legal authority in support of his position(s).*fn1
Consistent with the analyses above: Plaintiff's Motion for Leave to Amend (Doc. 13) is GRANTED; Plaintiff shall file his amended complaint by September 4, 2012; and Defendants' Motion to Dismiss (Doc. 6) is DENIED, without prejudice to renewal after Plaintiff files his amended complaint.
Cathy Bissoon United States District Judge
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