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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

SHAININ II, LLC, et al.,

Plaintiffs,

v.

JOHN ALLEN, et al.,

Defendants.

NO. C06-420P

ORDER ON DEFENDANTS’

MOTION FOR LEAVE TO AMEND

ANSWERS TO ASSERT

COUNTERCLAIM FOR

DECLARATORY RELIEF

This matter comes before the Court on Defendants’ motion for leave to amend their answers to

assert counterclaims for declaratory relief. (Dkt. No. 73). Having reviewed the materials submitted

by the parties and the balance of the record, the Court DENIES Defendants’ motion, without

prejudice to renewal. The reasons for the Court’s order are set forth below.

Background

Plaintiffs Shainin LLC, Shainin II, LLC, and Red X Holdings LLC filed this action in March

2006. Plaintiffs raise claims for breach of contract, trademark infringement, unfair competition,

tortious interference, and violations of the Washington Consumer Protection Act. Defendants are

John Allen, David Hartshorne, John Allen LLC, David Hartshorne, Ltd., and The New Science of

Fixing Things, Ltd. Mr. Allen and Mr. Hartshorne were formerly affiliated with one or more of the

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Plaintiffs and signed a number of employment agreements and license agreements with one or more of

the Plaintiffs.

Mr. Allen and John Allen LLC filed an answer to the complaint on May 11, 2006. Mr.

Hartshorne, David Hartshorne, Ltd., and The New Science of Fixing Things, Ltd. filed their answer

separately the same day. In their answers, Defendants raised one counterclaim for payment of their

attorney fees under the Lanham Act. Defendants now seek leave to amend their answers to assert

additional counterclaims. However, Defendants did not submit a copy of the proposed amended

answers and counterclaims with their motion to amend.

After Defendants’ motion to amend was fully briefed, the Court granted in part and denied in

part a motion by Plaintiffs to compel arbitration. (Dkt. No. 83). The Court’s order compelled

arbitration of claims asserted by Plaintiffs pursuant to certain contracts, but denied the motion to

compel as to several other claims. As a result, some of Plaintiffs’ claims remain pending in this Court,

while others must be pursued in arbitration. 

Analysis

The Court has two threshold concerns regarding Defendants’ pending motion: (1) Defendants

did not submit a copy of their proposed amended answers and additional counterclaims with their

motion to amend; and (2) because the Court has now compelled arbitration of certain claims asserted

by Plaintiffs, it is unclear whether some of the counterclaims that Defendants wish to assert must also

be pursued in the arbitration proceedings.

1. Failure to Provide Copy of Proposed Amendments

Commentators have noted that “a copy of the amendment should be submitted with the

motion [for leave to amend] so that the court and the adverse party know the precise nature of the

pleading changes being proposed.” 6 Charles Wright et al., Federal Practice & Procedure § 1485 (2d

ed. 1990). Although Rule 15 does not include an express requirement that a proposed amended

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26 ORDER - 3

pleading must be submitted with a motion for leave to amend, a number of courts have declined to

consider such motions unless a copy of the proposed amended pleading is provided with the motion. 

See, e.g., Williams v. Wilkerson, 90 F.R.D. 168 (E.D. Va. 1981); Nation v. United States

Government, 512 F. Supp. 121 (S.D. Ohio 1981). The Court finds that a similar approach is

warranted here, particularly because it appears that Defendants wish to assert broad counterclaims

regarding the interpretation and enforceability of provisions from several agreements. 

2. Court’s Ruling on Plaintiffs’ Motion to Compel Arbitration

On August 28th, after Defendants’ motion to amend was fully briefed, the Court issued an

order that granted in part and denied in part Plaintiffs’ motion to compel arbitration of their claims. 

This order compelled arbitration of some claims asserted by Plaintiffs, while other claims remained in

this Court. In light of the Court’s order on Plaintiffs’ motion to compel arbitration, it is unclear

whether some of the counterclaims that Defendants wish to assert will have to be pursued as

counterclaims in the arbitration proceeding, rather that in this Court. Defendants should address this

concern if they choose to file a renewed motion to amend their answers to assert counterclaims.

Conclusion

For the reasons set forth above, Defendants’ motion for leave to amend their answers to assert

counterclaims for declaratory relief is DENIED, without prejudice to filing a renewed motion that

addresses the concerns discussed in this order. The clerk is directed to send copies of this order to all

counsel of record.

Dated: September 19, 2006

s/Marsha J. Pechman 

Marsha J. Pechman

United States District Judge

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