PLAINTIFFS’ MOTION FOR LEAVE TO FILE A 

FOURTH AMENDED CLASS ACTION COMPLAINT 

Case No. 17-cv-00755-CW 

-1- 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ANNICK M. PERSINGER, SBN 272996 

MAREN I. CHRISTENSEN, SBN 320013 

TYCKO & ZAVAREEI LLP 

1970 Broadway, Suite 1070 

Oakland, CA 94612 

Telephone (510) 254-6808 

Facsimile (202) 973-0950 

apersinger@tzlegal.com 

mchristensen@tzlegal.com 

Attorney for Plaintiffs 

Additional Attorneys on Signature Page 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

JUAN QUINTANILLA VASQUEZ, GABRIELA 

PERDOMO ORTIZ, and VICTOR HUGO 

CATALAN MOLIN, individually and on behalf of 

all others similarly situated, 

 

 Plaintiffs, 

 vs. 

LIBRE BY NEXUS, INC. and JOHN DOES 1-50, 

Defendants. 

Case No. 4:17-cv-755-CW 

PLAINTIFFS’ NOTICE OF 

UNOPPOSED MOTION FOR LEAVE 

TO FILE A FOURTH AMENDED CLASS 

ACTION COMPLAINT 

Date: July 7, 2020 

Time: 2:30pm 

Courtroom: TBD 

Hon. Claudia Wilken 

 

 

Case 4:17-cv-00755-CW Document 135 Filed 06/02/20 Page 1 of 10
PLAINTIFFS’ MOTION FOR LEAVE TO FILE A 

FOURTH AMENDED CLASS ACTION COMPLAINT 

Case No. 17-cv-00755-CW 

-2- 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 

PLEASE TAKE NOTICE that on July 7, 2020 at 2:30pm in Courtroom 6 of the United 

States District Court for the Northern District of California, located at 1301 Clay Street, Oakland, CA 

94612, Plaintiffs Juan Quintanilla Vasquez, Gabriela Perdomo Ortiz, and Victor Hugo Catalan Molin 

(“Plaintiffs”) will move, and hereby do move, for an Order granting leave to file a Fourth Amended 

Class Action Complaint against Defendant Libre by Nexus, Inc. 

 This Motion is based on this Notice of Motion and Motion, the attached Memorandum of 

Points and Authorities, the Declaration of Annick M. Persinger submitted concurrently herewith, all 

pleadings and papers on file in this action, and such other matters as the Court may consider. A 

proposed order is also submitted with this Motion. 

Dated: June 2, 2020 Respectfully Submitted, 

/s/ Annick M. Persinger

ANINICK M. PERSINGER, SBN 272996 

MAREN I. CHRISTENSEN, SBN 320013 

TYCKO & ZAVAREEI LLP 

1970 Broadway, Suite 1070 

Oakland, CA 94612 

Telephone (510) 254-6808 

Facsimile (202) 973-0950 

apersinger@tzlegal.com 

mchristensen@tzlegal.com 

JESSE NEWMARK, SBN 247488 

AIDIN CASTILLO, SBN 280262 

CENTRO LEGAL DE LA RAZA 

3022 International Blvd., Suite 410 

Oakland, CA 94601 

Telephone (510) 437-1554 

jessenewmark@centrolegal.org 

acastillo@centrolegal.org 

NICHOLAS A. MIGLIACCIO, pro hac vice 

JASON S. RATHOD, pro hac vice

MIGLICACCIO & RATHOD LLP 

412 H St NE, Suite 302 

Washington DC 20002 

Telephone (202) 470-3520 

nmigliaccio@classlawdc.com 

jrathod@classlawdc.com 

Attorneys for Plaintiffs

Case 4:17-cv-00755-CW Document 135 Filed 06/02/20 Page 2 of 10
PLAINTIFFS’ MOTION FOR LEAVE TO FILE A 

FOURTH AMENDED CLASS ACTION COMPLAINT 

Case No. 17-cv-00755-CW 

-1- 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ANNICK M. PERSINGER, SBN 272996 

MAREN I. CHRISTENSEN, SBN 320013 

TYCKO & ZAVAREEI LLP 

1970 Broadway, Suite 1070 

Oakland, CA 94612 

Telephone (510) 254-6808 

Facsimile (202) 973-0950 

apersinger@tzlegal.com 

mchristensen@tzlegal.com 

Attorney for Plaintiffs 

Additional Attorneys on Signature Page 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

JUAN QUINTANILLA VASQUEZ, GABRIELA 

PERDOMO ORTIZ, and VICTOR HUGO 

CATALAN MOLIN, individually and on behalf of 

all others similarly situated, 

 

 Plaintiffs, 

 vs. 

LIBRE BY NEXUS, INC. and JOHN DOES 1-50, 

Defendants. 

Case No. 4:17-cv-755-CW 

PLAINTIFFS’ MEMORANDUM IN 

SUPPORT OF UNOPPOSED MOTION 

FOR LEAVE TO FILE A FOURTH 

AMENDED CLASS ACTION 

COMPLAINT 

Date: July 7, 2020 

Time: 2:30pm 

Courtroom: TBD 

Hon. Claudia Wilken 

 

 

Case 4:17-cv-00755-CW Document 135 Filed 06/02/20 Page 3 of 10
PLAINTIFFS’ MOTION FOR LEAVE TO FILE A 

FOURTH AMENDED CLASS ACTION COMPLAINT 

Case No. 17-cv-00755-CW 

-2- 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF CONTENTS 

I. INTRODUCTION ..................................................................................................................................... 3

II. PLAINTIFFS’ PROPOSED AMENDMENTS .................................................................................... 3

III. LEGAL STANDARD ................................................................................................................................ 4

IV. EACH FACTOR SUPPORTS ALLOWING AN AMENDMENT ................................................. 5

V. CONCLUSION .......................................................................................................................................... 7

Case 4:17-cv-00755-CW Document 135 Filed 06/02/20 Page 4 of 10
PLAINTIFFS’ MOTION FOR LEAVE TO FILE A 

FOURTH AMENDED CLASS ACTION COMPLAINT 

Case No. 17-cv-00755-CW 

-3- 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

I. INTRODUCTION 

Plaintiffs seek to amend the Class Action Complaint in this Action to include Plaintiff Kevin 

Calderon and redefine the Class and Subclasses to include “sponsors”— the individuals who agreed 

to indemnify Defendant Libre by Nexus (“LBN”) for any liability or losses arising from the program 

participant’s bond. None of the factors that courts evaluate in determining whether to grant leave to 

amend overcome Rule 15’s presumption that leave to amend should be granted. Defendant will not 

be prejudiced. To the contrary, Defendant does not oppose the motion. Additionally, there is no bad 

faith and the amendment would not be futile. Further, this action will not be disrupted by amendment 

because Defendant makes the same representations to sponsors as they do to program participants. 

Finally, allowing amendment will benefit both program participants as well as sponsors, because the 

proposed amendment is a material term of the Parties’ settlement. In other words, allowing 

amendment and approving the settlement will give both program participants and their sponsors the 

opportunity to receive monetary and other significant relief under the Settlement Agreement. 

Accordingly, for these reasons and the reasons below, Plaintiffs respectfully request that the Court 

grant Plaintiffs leave to file a Fourth Amended Class Action Complaint. 

II. PLAINTIFFS’ PROPOSED AMENDMENTS 

Plaintiffs bring the instant motion seeking leave to file a Fourth Amended Class Action 

Complaint that brings claims for violation of the California Unfair Competition Law, Cal. Bus. & 

Prof. Code §§ 17200, et seq., the California Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750, 

et seq., the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., and the Rosenthal Fair Debt 

Collection Practices Act, Cal. Civ. Code §§ 1788, et seq., on behalf of: 

All current or former LBN “program participants” and “sponsors” who paid, or caused to be 

paid on their behalf, a fee to LBN. 

The Current Program Participant Subclass consists of: 

All current LBN “program participants” and “sponsors” who paid, or caused to paid on their 

behalf, a fee to LBN. 

The proposed Former and Current Program Participant Payment Subclass consists of: 

All former LBN “program participants” who paid, or caused to be paid on their behalf, a 

Program Payment to LBN and all current LBN program participants who have been issued a 

Form I-391. 

The proposed Sponsor Payments Subclass consists of: 

Case 4:17-cv-00755-CW Document 135 Filed 06/02/20 Page 5 of 10
PLAINTIFFS’ MOTION FOR LEAVE TO FILE A 

FOURTH AMENDED CLASS ACTION COMPLAINT 

Case No. 17-cv-00755-CW 

-4- 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

All sponsors of members of the Former and Current Program Participants Payments Subclass 

who paid a fee to LBN, including any initial payment or set up fee. 

See Declaration of Jason Rathod in Support of Preliminary Approval, Ex. 1, Settlement Agreement, § 

VII.D (discussing filing of Amended Class Action Complaint that brings claims on behalf of the 

Sponsor Subclass); id. §I.z (defining Class and Subclasses to include sponsors). 

In the proposed Fourth Amended Class Action Complaint, Plaintiffs allege that, like the 

claims of program participants already alleged in this action, sponsors were also misled by LBN’s 

business practices. Compare Declaration of Annick M. Persinger in Support of Plaintiffs’ Motion for 

Leave to Amend, Ex. A, Proposed Fourth Amended Complaint ¶¶ 88-105 with Third Amended Class 

Action Complaint, Doc. 102 ¶¶ 70-122; see also Persinger Decl., Ex. B, Redlined Class Action 

Complaint. 

The alleged misrepresentations marketed to program participants are also marketed to 

sponsors. See Declaration of Annick M. Persinger in Support of Motion for Leave to Amend, Ex. A, 

Proposed Fourth Amended Complaint ¶¶ 88-105. Indeed, as detailed in Plaintiffs’ Motion for 

Preliminary Approval, a Settlement Class of program participants and their sponsors is certifiable for 

settlement purposes. See Plaintiffs’ Motion for Preliminary Approval. 

Defendant LBN has agreed that for purposes of the settlement, and with Court approval, 

Plaintiffs should file a Fourth Amended Class Action Complaint that includes the sponsor subclass 

and a proposed class representative. See Declaration of Jason Rathod in Support of Preliminary 

Approval, Ex. 1, Settlement Agreement, § VII.D (discussing filing of Fourth Amended Class Action 

Complaint); id. § I.z4-7 (defining Class and Subclasses to include sponsors). In addition to 

Defendant’s agreement, as detailed below, Plaintiffs should be granted leave to file the Proposed 

Fourth amended Complaint because all other factors considered weigh in favor of allowing an 

amendment. 

III. LEGAL STANDARD 

Pursuant to Fed. R. Civ. P. 15(a), a party may amend its pleading once as a matter of course and 

thereafter only by written consent of the opposing party or by leave of the Court. The Court should 

freely give leave to amend when justice so requires. Fed. R. Civ. P. 15(a)(2). 

Case 4:17-cv-00755-CW Document 135 Filed 06/02/20 Page 6 of 10
PLAINTIFFS’ MOTION FOR LEAVE TO FILE A 

FOURTH AMENDED CLASS ACTION COMPLAINT 

Case No. 17-cv-00755-CW 

-5- 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The Ninth Circuit has construed Rule 15(a) broadly, requiring that leave to amend be granted 

“with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). In 

determining whether to grant leave to amend, the Court considers the following factors: (1) bad faith; 

(2) undue delay; (3) prejudice to the opposing party, (4) futility of the amendment; and (5) whether the 

plaintiff has previously amended her complaint. See Foman v. Davis, 371 U.S. 178, 182 (1962); Barnes v. 

AT&T Pension Benefit Plan-Nonbargained Program, 273 F.R.D. 562, 565-66 (N.D. Cal. 2011); Phoenix 

Solutions, Inc. v. Sony Electronics, Inc., 637 F. Supp. 2d 683, 689 (N.D. Cal. 2009). Not all factors merit 

equal consideration, and prejudice to the opposing party carries the greatest weight. See id. Here, all five 

factors weigh in favor of permitting the amendment. 

IV. EACH FACTOR SUPPORTS ALLOWING AN AMENDMENT 

First, Plaintiffs do not seek to seek to amend their complaint in bad faith. “In the context of a 

motion for leave to amend, ‘bad faith’ means acting with intent to deceive, harass, mislead, delay, or 

disrupt.” Wizards of the Coast LLC v. Cryptozoic Entertainment LLC, 309 F.R.D. 645, 651 (W.D. Wash. 

2015). “As it has been defined in other contexts, ‘bad faith’ means more than acting with bad judgment 

or negligence, but ‘rather it implies the conscious doing of a wrong because of dishonest purpose or 

moral obliquity.... [I]t contemplates a state of mind affirmatively operating with furtive design or ill 

will.’” Id. (quoting United States v. Manchester Farming P’ship, 315 F.3d 1176, 1185 (9th Cir.2003)). 

Plaintiffs do not seek amendment to delay or disrupt the action. Instead, they seek amendment 

to resolve this action and confer the same settlement benefit conferred to sponsors of the participants 

in LBN’s bond programs. See e.g., Dep’t of Fair Employment and Housing v. Law School Admission Council, 

Inc., 2013 WL 485830, at *8 (N.D. Cal. Feb. 6, 2013) (finding no indication of bad faith where plaintiff 

sought amendment for the purpose of expanding the group or class to protect present and future 

victims of discrimination). In other words, the addition of sponsors will benefit those individuals by 

providing them monetary relief. This factor favors amendment because “[t]here is no evidence of 

‘conscious doing of a wrong ..., dishonest purpose or moral obliquity ..., [or] furtive design or ill will’” 

on Plaintiffs’ part. Wizards of the Coast LLC, 309 F.R.D. at 651 (quoting Manchester Farming P’ship, 315 

F.3d at 1185). 

Case 4:17-cv-00755-CW Document 135 Filed 06/02/20 Page 7 of 10
PLAINTIFFS’ MOTION FOR LEAVE TO FILE A 

FOURTH AMENDED CLASS ACTION COMPLAINT 

Case No. 17-cv-00755-CW 

-6- 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Second, here, the “undue delay” factor does not weigh against allowing an amendment because 

“delay alone no matter how lengthy is an insufficient ground for denial of leave to amend.” See U.S. v. 

Webb, 655 F.2d 977, 980 (9th Cir. 1981); see also e.g., Dep’t of Fair Employment and Housing, 2013 WL 

485830, at *3 (“Notably, undue delay by itself is insufficient to denying a motion to amend.” (citations 

omitted)). “Undue delay” is delay that prejudices the nonmoving party or imposes unwarranted burdens 

on the court. Davis v. Powell, 901 F. Supp. 2d 1196, 1212 (S.D. Cal. 2012). 

Although Defendants are the nonmoving party, they do not oppose this motion. Thus, as 

discussed below with respect to the third factor, Defendants will not be prejudiced. Nor will the Court 

suffer unwarranted burdens. The Court will not be burdened with new issues because the exact same 

allegations currently in this action apply to the sponsors. Further, allowing amendment will aid in the 

resolution of this action because it is a condition of the parties’ class action settlement which, with 

Court approval, will provide relief to program participants and sponsors and result in a final judgment. 

Finally, since there is no bad faith or prejudice, any delay should not prevent amendment. See U.S. v. 

Webb, 655 F.2d at 980 (explaining that the Ninth Circuit has held that a “district court had abused its 

discretion in denying leave to amend even five years after the original pleadings, where neither bad faith 

nor prejudice was apparent”); Bowles v. Read, 198 F.3d 752, 758 (9th Cir. 1999) (noting that the Ninth 

Circuit has “reversed the denial of leave to amend where the district court did not provide a 

contemporaneous and specific finding of prejudice to the opposing party, bad faith by the moving party, 

or futility of the amendment”). 

Third, Defendant will not be prejudiced. Plaintiffs do not seek an amendment to gain a 

litigation advantage. Rather, Defendant agreed to an amendment in furtherance of the parties’ class 

action settlement in this action. See Declaration of Jason Rathod in Support of Preliminary Approval, 

Ex. 1, Settlement Agreement, § VII.D (discussing filing of Fourth Amended Class Action Complaint); 

id. § I.z (defining Class and Subclasses to include sponsors). Not only will Defendants not be prejudiced, 

they will also gain the advantage of the global peace contemplated by the parties’ settlement. As a result, 

this factor strongly favors amendment. 

Fourth, an amendment would be far from futile. Since Defendants do not oppose amendment, 

the amendment would not be subject to dismissal. 

Case 4:17-cv-00755-CW Document 135 Filed 06/02/20 Page 8 of 10
PLAINTIFFS’ MOTION FOR LEAVE TO FILE A 

FOURTH AMENDED CLASS ACTION COMPLAINT 

Case No. 17-cv-00755-CW 

-7- 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Fifth, a court may consider whether the moving party has a history of repeated failure to cure 

deficiencies in its pleadings. No such history exists here. First, Plaintiffs filed their First Amended 

Complaint as a matter of course, adding Plaintiff Molina and a damages remedy for Plaintiffs’ CLRA 

claim. See First Amended Complaint, Doc. 14. The Second Amended Complaint dropped claims and 

added the Insurance Code as a predicate violation for Plaintiffs’ claim under the UCL unlawful prong. 

See Second Amended Complaint, Doc. 28. The Third Amended Complaint added further reference to 

the California Department of Insurance’s Regulations. See Docs. 90, 102. As such, like all of the other 

factors, this factor weighs in favor of allowing amendment. See Harris v. Best Buy Stores, L.P., No. 15-cv00657-HSG, 2015 WL 8527332, at *4 (N.D. Cal. Dec. 11, 2015) (finding this factor weighs in favor of 

amendment because “[t]his is not a case where Plaintiff failed to remedy a defective complaint in 

response to a motion to dismiss,” and granting motion to file a second amended complaint). 

V. CONCLUSION 

Since amendment will not prejudice Defendant and none of the other relevant factors weigh 

against leave to amend, nothing overcomes the presumption under Rule 15 in favor of granting leave 

to amend. See Eminence Capital, 316 F.3d at 1052. Therefore, Plaintiffs respectfully request that this 

Court grant leave to amend. 

Dated: June 2, 2020 Respectfully Submitted, 

/s/ Annick M. Persinger

ANINICK M. PERSINGER, SBN 272996 

MAREN I. CHRISTENSEN, SBN 320013 

TYCKO & ZAVAREEI LLP 

1970 Broadway, Suite 1070 

Oakland, CA 94612 

Telephone (510) 254-6808 

Facsimile (202) 973-0950 

apersinger@tzlegal.com 

mchristensen@tzlegal.com 

JESSE NEWMARK, SBN 247488 

AIDIN CASTILLO, SBN 280262 

CENTRO LEGAL DE LA RAZA 

3022 International Blvd., Suite 410 

Oakland, CA 94601 

Telephone (510) 437-1554 

jessenewmark@centrolegal.org 

acastillo@centrolegal.org 

Case 4:17-cv-00755-CW Document 135 Filed 06/02/20 Page 9 of 10
PLAINTIFFS’ MOTION FOR LEAVE TO FILE A 

FOURTH AMENDED CLASS ACTION COMPLAINT 

Case No. 17-cv-00755-CW 

-8- 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

NICHOLAS A. MIGLIACCIO, pro hac vice 

JASON S. RATHOD, pro hac vice

MIGLICACCIO & RATHOD LLP 

412 H St NE, Suite 302 

Washington DC 20002 

Telephone (202) 470-3520 

nmigliaccio@classlawdc.com 

jrathod@classlawdc.com 

Attorneys for Plaintiffs

Case 4:17-cv-00755-CW Document 135 Filed 06/02/20 Page 10 of 10