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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LAURA FUJISAWA, et al.

Plaintiff(s),

v.

COMPASS VISION, INC., et

al.,

Defendant(s).

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No. C07-5642 BZ

Related Cases: C07-3431 BZ

 C08-4118 BZ

 C09-2016 BZ

ORDER GRANTING DEFENDANT’S

MOTION TO AMEND THE ANSWER

Before the Court is defendant National Medical Services,

Inc.’s (“National”) motion to amend the answer (Doc. No. 64)

to include additional affirmative defenses and to modify

certain admissions. Plaintiff does not oppose the addition of

the defenses but does oppose the modification of six answers

to allegations. Because plaintiff has failed to show any

prejudice, undue delay, bad faith, or futility, the motion is

GRANTED in its entirety.

“In determining whether amendments are appropriate,

courts commonly consider four factors: 1) bad faith of the

moving party, 2) delay in the proceedings, 3) prejudice to the

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nonmoving party, and 4)futility of the amendment.” Genentech,

Inc. v. Abbot Laboratories, 127 F.R.D. 529, 530 (N.D.Cal.

1989) citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186

(9th Cir. 1987). “The party opposing amendment bears the

burden of showing why amendment should not be granted.” Board

of Trustees of the Leland Stanford Junior Univ. v. Roche

Molecular Sys., Inc., 2008 WL 624771, at *6 (N.D.Cal. 2008). 

Here, plaintiff has provided no argument or authority to

suggest that the requested amendments are improper. Plaintiff

made bare allegations that the amendments are “in bad faith,”

“unfair,” and “prejudicial.” Doc. No. 148, p. 2. However,

plaintiff failed to submit evidence or authority to support

her allegations and therefore failed to carry her burden in

opposing the motion.

Further, National stated in its moving papers that its

goal in amending the answer was to align the allegations and

denials in this case with its answer in the Byrum case (C09-

2016) filed on June 26, 2009, a related case in which

plaintiff’s attorney is also lead counsel. The amendments

that National proposes in this case are identical to the

allegations and denials in its answer in the Bryum case. It

is difficult to conceive how plaintiff would be prejudiced in

any meaningful way, and plaintiff has failed to articulate any

particular harm that would result from the amendments.

This case is similar to Dabbas v. Moffitt & Associates,

2008 WL 686687 (S.D.Cal. 2008), which permitted the defendant

to amend its answer to change an inadvertent admission to a

denial shortly after discovering that prior counsel had

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mistakenly admitted a significant fact. The court found that

plaintiff had not shown “undue prejudice, undue delay, or bad

faith” and granted defendant’s motion to file an amended

answer. Id. at *4.

Here too, National’s answer was drafted by prior counsel. 

Though National’s new counsel should have made the amendments

earlier, plaintiff has not made any showing of prejudice. 

Plaintiff’s counsel was on notice of the substance of the

proposed amendments as early as June 25, 2009, when National

filed its answer in the Byrum matter. Moreover, it appears

little discovery has been taken thus far and the Court has

recently extended the discovery deadlines and trial date. 

IT IS ORDERED that defendant’s motion to amend the answer

is GRANTED. Defendant shall file its amended answer by

FEBRUARY 10, 2010. The Court find no need for argument and

the hearing scheduled for February 17, 2010 is VACATED. All

requests for telephonic appearance at the February 17, 2010

hearing are denied as MOOT. 

Dated: February 8, 2010

 Bernard Zimmerman

 United States Magistrate Judge

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