Bailey v. HCA, Inc., No. 2:2021cv01740 - Document 35 (D. Nev. 2022)
Court Description: ORDER Granting 30 Motion to Amend. Amended Complaint deadline: 8/19/2022. Signed by Magistrate Judge Brenda Weksler on 7/18/2022. (Copies have been distributed pursuant to the NEF - KF)
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Bailey v. HCA, Inc. Doc. 35 Case 2:21-cv-01740-RFB-BNW Document 30 Filed 03/17/22 Page 1 of 6 1 Gustavo Ponce, Esq. Nevada Bar No. 15084 2 Mona Amini, Esq. KAZEROUNI LAW GROUP, APC 3 6069 South Fort Apache Road, Suite 100 Las Vegas, Nevada 89148 4 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 5 Email: gustavo@kazlg.com 6 mona@kazlg.com Amanda J. Allen, Esq. (Pro Hac Vice) 7 Florida Bar No. 0098228 THE CONSUMER PROTECTION FIRM, PLLC 8 401 East Jackson Street, Suite 2340 Tampa, Florida. 33602 9 Telephone: (813) 500-1500 Facsimile: (813) 435-2369 10 Amanda@TheConsumerProtectionFirm.com 11 Attorneys for Plaintiff, Regina Bailey 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA 14 15 REGINA BAILEY, individually and on behalf of all others similarly situated, 16 Plaintiff, 17 18 Case No.: 2:21-cv-01740-RFB-BNW MOTION FOR LEAVE TO AMEND TO ADD AN ADDITIONAL PARTY vs. 19 HCA HEALTHCARE, INC.; and VALLEY HEALTH, 20 21 Defendants. 22 23 24 25 COMES NOW, the Plaintiff, by and through her undersigned counsel, and 26 pursuant to Local Rule 15-1 and Federal Rules of Civil Procedure 15(a)(2) and 27 16(b)(4), and hereby submits this Motion for Leave to File Amended Complaint to add 28 an additional party. In support of this motion, the Plaintiff states as follows: -1MOTION FOR LEAVE TO AMEND TO ADD AN ADDITIONAL PARTY Dockets.Justia.com Case 2:21-cv-01740-RFB-BNW Document 30 Filed 03/17/22 Page 2 of 6 1 1) On September 21, 2021, Plaintiff filed this case asserting Defendant, HCA, 2 Healthcare, Inc., left approximately 40 prerecorded or artificial voice messages 3 to call a cellular telephone number without the recipient’s prior express consent 4 (Doc 1). 5 2) On November 16, 2021, Plaintiff filed a motion to substitute party from HCA 6 Healthcare, Inc. to HCA, Inc. (Doc 16) and that Motion was Granted by the 7 Court. 8 3) Based on newly found information, Plaintiff believes Valley Health System, 9 LLC is an additional proper Defendant who also placed pre-recorded calls to her 10 11 12 13 14 cellular phone in an attempt to reach a third party. 4) The parties have conferred to this amendment and HCA, INC. has been unable to agree to the relief sought at this time. LEGAL STANDARD Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend 15 his pleading once as a matter of course within twenty-one (21) days after serving it, or 16 within twenty-one (21) days after service of a responsive pleading. Fed. R. Civ. P. 17 15(a)(1). Otherwise, such as in this instance, the party must seek the court's leave or 18 the opposing party's written consent to amend the pleading. See Fed. R. Civ. P. 19 15(a)(2). The Supreme Court of the United States has unequivocally held that, in 20 instances where leave of court is required for amendment, “Rule 15(a) declares that 21 leave to amend shall be freely given when justice so requires; this mandate is to be 22 heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962) (emphasis added) (internal 23 quotations omitted). “Rule 15(a) prescribes a liberal standard and usually a court will 24 look favorably on requests to amend.” U.S. v. Shaner, No. Civ. A. 85-1372, 1992 WL 25 154572, at *1 (E.D. Pa. June 16, 1992); see also Bechtel v. Robinson, 886 F.2d 644, 26 652 (3d Cir. 1989) (“We have noted that the courts have shown a strong liberality in 27 allowing amendments under Rule 15(a).”); Dole v. Arco Chemical Co., 921 F.2d 484, 28 486-487 (3d. Cir. 1990) (“[W]e have consistently held that leave to amend should be -2MOTION FOR LEAVE TO AMEND TO ADD AN ADDITIONAL PARTY Case 2:21-cv-01740-RFB-BNW Document 30 Filed 03/17/22 Page 3 of 6 1 granted freely.”). The Third Circuit has gone so far as to recognize the existence of a 2 “general presumption in favor of allowing a party to amend pleadings.” Boileau v. 3 Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir. 1984). This liberal approach 4 “ensures that a particular claim will be decided on the merits rather than on 5 technicalities.” Dole, 921 F.2d at 487. However, even with this liberal standard, courts 6 will deny a motion to amend on grounds of dilatoriness or undue delay, prejudice, bad 7 faith or futility. See Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.2000); Hill v. City of 8 Scranton, 411 F.3d 118, 134 (3d Cir.2005). If there is an absence of undue delay, bad 9 faith, prejudice or futility, a motion for leave to amend a pleading should be liberally 10 granted. Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004). Courts have pointed out 11 that no unfair prejudice should be found simply because a party has to defend against 12 a better-pleaded claim.1 Where a deficiency could be cured by an amendment, leave 13 to amend should be granted.2 ARGUMENT 14 As stated above, in light of information Plaintiff recently learned, Plaintiff now 15 16 moves this Court to grant Plaintiff leave to amend Plaintiff’s initial Complaint to 17 include an additional party. Motions to amend should be granted as justice so requires 18 and Plaintiff is entitled to relief from Defendant based upon a Complaint conforming 19 to the evidence. As such, justice requires that Plaintiff be granted leave to amend the 20 Complaint. Motions to amend should only be denied if granting the motion would cause 21 22 undue surprise or prejudice to the other party. At this stage of litigation and the nature 23 of the requested amendment, Defendant’s strategy in defending this matter will be 24 25 1 Popp Telcom, Inc. v. American Sharecom, Inc., 210 F.3d 928, 943 (8th Cir. 2000) 26 (“The inclusion of a claim based on facts already known or available to both sides does 27 not prejudice the non-moving party.”) 28 2 Lopez v. Smith, 203 F. 3d 1122, 1130 (9th Cir. 200) (leave to amend should be granted even if not requested). -3MOTION FOR LEAVE TO AMEND TO ADD AN ADDITIONAL PARTY Case 2:21-cv-01740-RFB-BNW Document 30 Filed 03/17/22 Page 4 of 6 1 minimally affected as Defendant and defense counsel have been aware of the additional 2 party and information giving rise to Plaintiff’s need to amend the operative Complaint. 3 Additionally, Plaintiff’s counsel has reached out to Defendant’s counsel several times 4 regarding the necessary amendment to Plaintiff’s Complaint, thus, Defendant should 5 not be unduly surprised. 6 Furthermore, both of the present parties have an interest in seeing that Valley 7 Health System, LLC is included in as a party in this action and held to account for any 8 violations of the law that it may have engaged in. Thus, for the foregoing reasons, 9 Plaintiff requests that the relief requested herein be granted. LOCAL RULE LR IA 1-3 (f) 10 11 Pursuant to Local Rule IA 1-3 (f), counsel for Plaintiff certifies that she 12 conferred with opposing counsel in good faith and Defendant has been unable to agree 13 to the relief sought herein. 14 15 CONCLUSION Based on the above, Plaintiff respectfully requests that the Court grant 16 Plaintiff’s Motion for Leave to Amend Plaintiff’s Complaint because justice does so 17 require. It would not cause undue surprise or prejudice to the Defendant because it does 18 it substantially change Defendant’s defenses. In no way does it cause prejudice to 19 Defendant as Defendant is already preparing to defend this action in relatively the same 20 manner as it would after an amendment to the Complaint. Therefore, in weighing these 21 factors, this Court should grant Plaintiff’s Motion for Leave to Amend Plaintiff’s 22 Complaint to add Valley Health System, LLC as a defendant. 23 24 DATED this 17th day of March 2022. 25 Respectfully submitted, 26 27 28 /s/_Gustavo Ponce, Gustavo Ponce, Esq. Nevada Bar No. 15084 Mona Amini, Esq. _ -4MOTION FOR LEAVE TO AMEND TO ADD AN ADDITIONAL PARTY Case 2:21-cv-01740-RFB-BNW Document 30 Filed 03/17/22 Page 5 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 KAZEROUNI LAW GROUP, APC 6069 South Fort Apache Road, Suite 100 Las Vegas, Nevada 89148 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 Email: gustavo@kazlg.com mona@kazlg.com /s/Amanda J. Allen. __ Amanda J. Allen, Esq. (Pro Hac Vice) Florida Bar No. 0098228 THE CONSUMER PROTECTION FIRM, PLLC 401 East Jackson Street, Suite 2340 Tampa, Florida 33602 Telephone: (813) 500-1500 Facsimile: (813) 435-2369 Amanda@TheConsumerProtectionFirm.com 14 15 16 17 18 19 ORDER IT IS ORDERED that ECF No. 30 is GRANTED as unopposed. See ECF No. 31 ("HCA does not oppose the Motion to Amend given the liberal standard governing amendment."). IT IS FURTHER ORDERED that Plaintiff must file her amended complaint by 8/19/2022. IT IS SO ORDERED DATED: 5:51 pm, July 18, 2022 20 21 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 -5MOTION FOR LEAVE TO AMEND TO ADD AN ADDITIONAL PARTY Case 2:21-cv-01740-RFB-BNW Document 30 Filed 03/17/22 Page 6 of 6 CERTIFICATE OF SERVICE 1 2 3 I HEREBY CERTIFY that on March 17, 2022, a true copy of the foregoing 4 was filed with the Clerk of the Court and served on the parties of record using the 5 CM/ECF system. 6 Respectfully submitted, 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 /s/_Gustavo Ponce, _ Gustavo Ponce, Esq. Nevada Bar No. 15084 Mona Amini, Esq. KAZEROUNI LAW GROUP, APC 6069 South Fort Apache Road, Suite 100 Las Vegas, Nevada 89148 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 Email: gustavo@kazlg.com mona@kazlg.com /s/Amanda J. Allen. __ Amanda J. Allen, Esq. (Pro Hac Vice) Florida Bar No. 0098228 THE CONSUMER PROTECTION FIRM, PLLC 401 East Jackson Street, Suite 2340 Tampa, Florida 33602 Telephone: (813) 500-1500 Facsimile: (813) 435-2369 Amanda@TheConsumerProtectionFirm.com 23 24 25 26 27 28 -6MOTION FOR LEAVE TO AMEND TO ADD AN ADDITIONAL PARTY
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