UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

GARY J. SCHULZ, an individual and

THE ESTATE OF DONALD R. GARRIS,

Plaintiffs,

v.

 

VISIONARY PROPERTIES, INC., a

Delaware corporation and HVHC, INC., a

Delaware corporation,

Defendants.

Civ. No. 3:14-cv-01129-AC

OPINION AND

ORDER

VISIONARY PROPERTIES, INC., a

Delaware corporation and HVHC, INC., a

Delaware corporation, 

Counterclaim Plaintiffs,

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v.

GARY J. SCHULZ, an individual and

THE ESTATE OF DONALD R. GARRIS,

Counterclaim Defendants.

___________________________________

ACOSTA, Magistrate Judge:

Introduction

Two optometrists filed this lawsuit asserting claims based on their landlord’s decision not

to enter into a new sublease upon the termination of the existing sublease. The optometrists alleged

the landlord agreed, by oral agreement or course of conduct, to renew the existing subleases on an

annual basis in the absence of impropriety by the optometrists. In an Opinion and Order entered

December 1, 2015, the court granted the landlord summary judgment, finding the optometrists failed

to present evidence of an oral contract or conduct modifying the existing subleases.1

Schulz v.

Visionary Properties, Inc., Civ No. 3:14-cv-01129-AC, 2015 WL 7756015 (D. Or. Dec. 1, 2015.)

Presently before the court is a motion to amend the complaint to add another similarlysituated optometrist under Federal Rules of Civil Procedure 15 and 20. The court finds the claims

of the proposed new plaintiff suffer from the same deficiencies as the original plaintiffs and the

proposed amendment would be futile.2 Accordingly, the motion to amend is denied.3

/ / / / /

1The court denied summary judgment on one optometrist’s claim for breach of the existing

sublease on grounds not relevant here.

2The optometrists requested oral argument in their motion. The court finds this motion

appropriate for disposition without oral argument pursuant to LR 7-1(d)(1) and denies the request. 

3The parties have consented to jurisdiction bymagistrate judge in accordance with 28 U.S.C.

§ 636(c)(1).

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Legal Standard

I. Rule 15

After the initial pleading stage, a plaintiff may amend his “pleading only with the opposing

party’s written consent or the court’s leave. The court should freely give leave when justice so

requires.” FED. R. CIV. P. 15(a) (2015). “Although the rule should be interpreted with ‘extreme

liberality,’ leave to amend should not be granted automatically.” Jackson v. Bank of Hawaii, 902

F.2d 1385, 1387 (9th Cir. 1990) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). 

A trial court may deny the motion if permitting amendment would prejudice the opposing party,

produce an undue delay in litigation, result in futility for lack of merit, is sought by plaintiffs in bad

faith or with a dilatory motive, or the plaintiffs have filed numerous amended complaints. Foman

v. Davis, 371 U.S. 178, 182 (1962); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.

1987). Prejudice to the opposing party carries the “greatest weight” in determining whether to deny

leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 

Whether to grant leave to amend lies within the sound discretion of the trial court. Webb, 655 F.2d

at 979. In exercising this discretion, however, the court “must be guided by the underlying purpose

of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities.” Id.

II. Rule 20

Rule 20 allows a third-party to join in an action as a plaintiff if “they assert any right to relief

jointly, severally, or in the alternative, with respect to or arising out of the same transaction,

occurrence, or series of transactions or occurrences” and if “any question of law or fact common to

all plaintiffs will arise in the action.” FED. R. CIV. P. 20(a)(1) (2015). The Ninth Circuit requires 

Rule 20 to “be construed liberally in order to promote trial convenience and to expedite the final

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determination of disputes, thereby preventing multiple lawsuits.” League to Save Lake Tahoe v.

Tahoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977). Nevertheless, “[e]ven once [the]

requirements [of Rule 20(a)(1)] are met, a district must examine whether permissive joinder would

comport with the principles of fundamental fairness or would result in prejudice to either side.” 

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000)(internal quotation omitted). 

When two or more plaintiffs join their claims under the joinder provision of Rule 20, each and every

plaintiff is bound by the terms of a judgment entered in the action. Snyder v. Harris, 394 U.S. 332,

337 (1969).

Discussion

For the most part, the claims asserted by the new optometrist, Shauna Schissler (“Schlisser”),

in the proposed Second Amended Complaint are virtually identical to those asserted by the original

optometrists. Schlisser asserts claims for breach of contract, interference with economic relations,

and breach of the implied duty faith and fair dealing on the same grounds as the original

optometrists. In fact, Schlisser’s name is merely added to the claims in the existing complaint with

two exceptions. First, Schlisser alleges she “purchased her store” for $100,000 and that the landlord

decided not to enter into a new sublease shortly after asking Schlisser if she had, and if she planned

to have more, children and Schlisser answering “yes” to both questions. 

To the extent Schlisser is asserting claims based solely on the existing sublease, alleged to

be the same sublease on which the existing optometrist rely, she is asserting claims arising out of

transactions similar to the existing optometrists and, arguably, may be entitled to joinder under Rule

20. However, the court has ruled the existing optometrists failed to present evidence sufficient to

survive summary judgment on their claims related to the sublease, a ruling that would apply equally

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to Schlisser. Accordingly, the proposed amendment based on these claims is futile.

To the extent Schlisser is asserting claims based on a contract relating to the purchase of the

store or some form of sex discrimination based on the landlord’s decision not to offer her a new

sublease shortly after it learned she had, and planned to have more, children, the claims are not

related to those asserted by the existing optometrists. Such claims do not arise out of the same

transaction, occurrence, or series of transactions or occurrences and do not raise questions of law or

fact common to all plaintiffs. Accordingly, the proposed amendment would not be proper under

Rule 20. Additionally, the addition of new, unrelated claims at this time would unduly prejudice 

the landlord and undulydelaythis action, making the proposed amendment inappropriate under Rule

15.

Conclusion

The pending motion (ECF No. 38) for leave to file a second amended complaint is DENIED.

DATED this 21st day of December, 2015.

 /s/ John V. Acosta 

 JOHN V. ACOSTA

United States Magistrate Judge 

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