Calendar Research LLC v. StubHub, Inc. et al

REPLY in Support of NOTICE OF MOTION AND MOTION to File Amended Answer 243

C.D. Cal.February 11, 2019

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 DUSSEAULT’S REPLY ISO MOTION FOR LEAVE TO FILE AMENDED ANSWER BRENDAN S. MAHER (SBN 217043) brendan.maher@strismaher.com ELIZABETH R. BRANNEN (SBN 226234) elizabeth.brannen@strismaher.com STEVEN B.F. STIGLITZ (SBN 222667) steven.stiglitz@strismaher.com STRIS & MAHER LLP 725 S. Figueroa Street, Suite 1830 Los Angeles, CA 90017 T: (213) 995-6800 | F: (213) 261-0299 LAW OFFICES OF CYRUS S. NAIM 9107 Wilshire Blvd., Suite 450 Beverly Hills, CA 90210 Tel.: (310) 773-5490 Cyrus S. Naim (SBN 240119) cnaim@naimlegal.com Attorneys for Defendant Lisa Dusseault UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION CALENDAR RESEARCH LLC, a Delaware limited liability company, Plaintiff, vs. MICHAEL HUNTER GRAY, an individual; STUBHUB, INC., a Delaware corporation; EBAY INC., a Delaware corporation; LISA DUSSEAULT, an individual; LASHA EFREMIDZE an individual; and DOES 5 through 10, inclusive, Defendants. Case No. 2:17-cv-04062-SVW-SS Hon. Stephen V. Wilson, Courtroom 10A REPLY IN SUPPORT OF DEFENDANT LISA DUSSEAULT’S MOTION FOR LEAVE TO FILE AMENDED ANSWER Hearing Date: February 25, 2019 Hearing Time: 1:30 p.m. Location: Courtroom 10A Case 2:17-cv-04062-SVW-SS Document 251 Filed 02/11/19 Page 1 of 12 Page ID #:9578 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 DUSSEAULT’S REPLY ISO MOTION FOR LEAVE TO FILE AMENDED ANSWER TABLE OF CONTENTS I. INTRODUCTION ................................................................................................. 1 II. ARGUMENT ......................................................................................................... 2 A. Plaintiff Has Wholly Failed to Establish Prejudice .................................... 2 B. A Month Is Not Undue Delay ..................................................................... 4 C. Dusseault’s Amendment Is Not Futile ........................................................ 6 D. Plaintiff Concedes There Is No Bad Faith .................................................. 7 III. CONCLUSION ..................................................................................................... 8 Case 2:17-cv-04062-SVW-SS Document 251 Filed 02/11/19 Page 2 of 12 Page ID #:9579 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 ii DUSSEAULT’S REPLY ISO MOTION FOR LEAVE TO FILE AMENDED ANSWER TABLE OF AUTHORITIES Cases Acri v. Int'l Asso. of Machinists & Aerospace Workers, 781 F.2d 1393 (9th Cir. 1986) ......................................................................... 6 Agron, Inc. v. Chien-Lu Lin, No. CV 03-05872 MMM (JWJx), 2004 U.S. Dist. LEXIS 26605 (C.D. Cal. Mar. 15, 2004) ............................ 10 Bates v. Jones, No. C 95-2638 CW, 1996 U.S. Dist. LEXIS 20998 (N.D. Cal. May 30, 1996) .............................. 7 Bowles v. Reade, 198 F.3d 752 (9th Cir. 1999) ........................................................................... 5 DCD Programs, Ltd. v. Leighton, 833 F.2d 183 (9th Cir. 1987) ....................................................................... 2, 5 Degroot v. United States, No. 3:15-cv-02145-H-NLS, 2017 U.S. Dist. LEXIS 144340 (S.D. Cal. Sep. 5, 2017) ............................... 3 Futurelogic, Inc. v. Transact Techs., Inc., No. CV 05-03754 MMM (CTx), 2007 U.S. Dist. LEXIS 104951 (C.D. Cal. Oct. 29, 2007) ............................. 9 G&C Auto Body Inc. v. GEICO Gen. Ins. Co., No. C06-04898 MJJ, 2007 U.S. Dist. LEXIS 93652 (N.D. Cal. Nov. 6, 2007) ................................ 4 Hynix Semiconductor, Inc. v. Toshiba Corp., No. C-04-04708 VRW, 2006 U.S. Dist. LEXIS 82148 (N.D. Cal. Oct. 31, 2006) ............................... 8 In re Northrop Grumman Corp. Erisa Litig., No. CV 06-06213 MMM (JCx), 2010 U.S. Dist. LEXIS 148742 (C.D. Cal. Aug. 12, 2010) ........................ 4, 5 Jackson v. Bank of Haw., 902 F.2d 1385 (9th Cir. 1990) ..................................................................... 6, 7 Kannar v. Alticor, Inc., No. CV 09-2500 PSG (VBKx), 2010 U.S. Dist. LEXIS 32681 (C.D. Cal. Mar. 10, 2010) .......................... 4, 5 Kaplan v. Rose, 49 F.3d 1363 (9th Cir. 1994) ........................................................................... 6 Lindsey v. Elsevier Inc., No. 16cv959-GPC(DHB), 2017 U.S. Dist. LEXIS 129960 (S.D. Cal. Aug. 15, 2017) ............................ 8 Miller v. Rykoff-Sexton. Inc., 845 F.2d 209 (9th Cir. 1988) ........................................................................... 8 Oushana v. Lowe's Cos., No. 1:16-cv-01782-AWI-SAB, 2017 U.S. Dist. LEXIS 182852 (E.D. Cal. Nov. 2, 2017) .............................. 3 Case 2:17-cv-04062-SVW-SS Document 251 Filed 02/11/19 Page 3 of 12 Page ID #:9580 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 iii DUSSEAULT’S REPLY ISO MOTION FOR LEAVE TO FILE AMENDED ANSWER Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708 (9th Cir. 2001) ........................................................................... 5 Radware Ltd. v. F5 Networks, Inc., No. C-13-2024 RMW, 2014 U.S. Dist. LEXIS 103215 (N.D. Cal. July 28, 2014) ............................. 7 Starcity Capital, LLC v. Bio-Matrix Sci. Grp., LLC, No. 13CV1394 BEN (JLB), 2014 U.S. Dist. LEXIS 162845 (S.D. Cal. Nov. 19, 2014) ............................ 9 Texaco, Inc. v. Ponsoldt, 939 F.2d 794 (9th Cir. 1991) ....................................................................... 6, 7 Thieme v. Cobb, No. 13-cv-03827-MEJ, 2016 U.S. Dist. LEXIS 88909 (N.D. Cal. July 8, 2016) ................................. 7 United States v. United Healthcare Ins. Co., 848 F.3d 1161 (9th Cir. 2016) ......................................................................... 6 Rules L.R. 7-3 ...................................................................................................................... 6 Case 2:17-cv-04062-SVW-SS Document 251 Filed 02/11/19 Page 4 of 12 Page ID #:9581 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 1 DUSSEAULT’S REPLY ISO MOTION FOR LEAVE TO FILE AMENDED ANSWER I. INTRODUCTION In her Motion for Leave to File Amended Answer (“Motion”), Dusseault established that she had brought her motion just over a month after discovery of new facts giving rise to her defenses, and that there could be no prejudice to Plaintiff because the verbatim defenses were already present in the case. Given the very strong presumptions in favor of granting leave to amend, her Motion should therefore be granted in its entirety. Plaintiff’s Opposition (“Opp.”) wholly fails to disturb this conclusion. It claims—contrary to overwhelming case-law—that undue delay alone is sufficient to deny leave. But in each and every one of the cases it cites, the courts found the opposing party would be prejudiced, something which Plaintiff fails to establish here. Indeed, Plaintiff cannot explain how it could have been prejudiced given that there were pre-existing identical defenses it had the opportunity to fully investigate in discovery. Nor, other than conclusory claims certain witnesses might have relevant information, does it identify any specific discovery that it needs. Nor does it explain why it needs to investigate when all the information is already in its own possession. Ms. Dusseault did not delay in any event. Plaintiff claims she should have known at the outset that Plaintiff had taken efforts to recover its private key, but that is not the relevant issue. Nothing Plaintiff references shows that Ms. Dusseault was on notice that it had failed to request the Google key from its only employee tasked on working on the Google Android version of its app. Finally, Plaintiff claims the amendment would be futile because of factual disagreements it has with Ms. Dusseault’s defenses. But such factual disputes cannot be considered on a motion for leave. Ms. Dusseault need only show that her defenses would have merit under any conceivable set of facts. Ms. Dusseault’s defenses, which are based on Plaintiff’s own 30(b)(6) testimony, more than meet that criteria here. Ms. Dusseault should be permitted to amend her answer, so the parties can address the claims on the merits. Case 2:17-cv-04062-SVW-SS Document 251 Filed 02/11/19 Page 5 of 12 Page ID #:9582 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 2 DUSSEAULT’S REPLY ISO MOTION FOR LEAVE TO FILE AMENDED ANSWER II. ARGUMENT A. Plaintiff Has Wholly Failed to Establish Prejudice As noted in Dusseault’s motion, prejudice is the most important factor in determining whether to grant leave to amend. (Motion at 6.) “The party opposing amendment bears the burden of showing prejudice.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Plaintiff fails to establish prejudice here. First, Plaintiff claims it could not know that Dusseault’s concerns were raised by the other defendants because “the generic, boilerplate defenses interposed by the remaining defendants give no indication that those defenses either (i) relate to Plaintiff’s DTSA and CFAA claims or (ii) are based on the same set of facts asserted by Ms. Dusseault in her motion for leave to amend.” (Opp. at 10.) Plaintiff has it backwards. If the existing boilerplate defenses are vague, that means they encapsulate more potential issues than Dusseault’s defenses, not less. Plaintiff admits it has no idea which claims StubHub’s and eBay’s defenses might or might not relate to, and that they therefore could apply to any or all of Plaintiff’s claims, on any number of grounds. That necessarily includes the DTSA and CFAA claims. Plaintiff cannot claim to be surprised by limited defenses when broader defenses—which wholly subsume the issues raised by Dusseault—have already been at issue.1 More importantly, and as noted in Dusseault’s motion, the proposed amendment includes verbatim the same affirmative defenses raised by Defendants StubHub, Inc. and eBay Inc. (Motion at 5.) Exact language necessarily provides exactly the same notice to Plaintiff about the issues existing in the case. It is therefore impossible for Dusseault’s defenses to somehow result in surprise to Plaintiff. Plaintiff cannot 1 Ms. Dusseault will seek leave to amend to raise defenses to claims other than the DTSA and CFAA after the stay on such claims is lifted. Case 2:17-cv-04062-SVW-SS Document 251 Filed 02/11/19 Page 6 of 12 Page ID #:9583 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 3 DUSSEAULT’S REPLY ISO MOTION FOR LEAVE TO FILE AMENDED ANSWER explain why StubHub’s and eBay’s affirmative defenses were acceptable while it was wholly surprised by Ms. Dusseault’s. Second, Plaintiff argues that it would need to conduct additional discovery and claims “there are numerous individuals from whom relevant discovery would be required by Plaintiff in order to address Ms. Dusseault’s proposed amendment, including, without limitation: (i) Ms. Dusseault herself, as the former lead engineer at Calaborate; (ii) Defendant Gray; (iii) Steve Orens; and (iv) Jose Ayerdis.” (Opp. at 10.) As noted above, Dusseault’s defenses are the same as those of each of the other defendants in this case. If discovery were necessary on them, Plaintiff has already had every opportunity to conduct it. It has wholly failed to explain why pre-existing defenses did not require discovery while Dusseault’s, which are identical, do. See, e.g., Oushana v. Lowe's Cos., No. 1:16-cv-01782-AWI-SAB, 2017 U.S. Dist. LEXIS 182852, at *22 (E.D. Cal. Nov. 2, 2017) (“Although the discovery period has already closed . . . amending the complaint to state a fraud claim would not expand the scope of the discovery required beyond that which was already required”); Degroot v. United States, No. 3:15-cv-02145-H-NLS, 2017 U.S. Dist. LEXIS 144340, at *7-8 (S.D. Cal. Sep. 5, 2017) (no prejudice where new claim rested on same facts as pre-existing claim, requiring no additional discovery); G&C Auto Body Inc. v. GEICO Gen. Ins. Co., No. C06-04898 MJJ, 2007 U.S. Dist. LEXIS 93652, at *5 n.2 (N.D. Cal. Nov. 6, 2007) (no prejudice where “the operative facts supporting the counterclaim are already material to the litigation because of the affirmative defenses that GEICO has already pleaded in this action”). Indeed, though Plaintiff generically claims it would need to conduct discovery from several witnesses, it wholly fails to identify what such discovery would consist of, what it would hope to uncover, and why it did not already conduct it. Plaintiff cannot show prejudice by merely reciting a list of witnesses, without explaining what information such witnesses would have or why it needs their testimony. See, e.g., In re Case 2:17-cv-04062-SVW-SS Document 251 Filed 02/11/19 Page 7 of 12 Page ID #:9584 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 4 DUSSEAULT’S REPLY ISO MOTION FOR LEAVE TO FILE AMENDED ANSWER Northrop Grumman Corp. Erisa Litig., No. CV 06-06213 MMM (JCx), 2010 U.S. Dist. LEXIS 148742, at *38-39 (C.D. Cal. Aug. 12, 2010) (“Although they bear the burden of demonstrating prejudice, defendants do not identify a particular topic on which they will require discovery from plaintiffs or from a third party.”); United States v. Jess, No. C05-03964 MJJ, 2008 U.S. Dist. LEXIS 118850, at *5 (N.D. Cal. Feb. 19, 2008) (granting leave after settlement of all existing claims where party alleged “in conclusory fashion, that additional discovery necessitated by the cross-claims would result in prejudice, but d[id] not identify the specific discovery that would be needed”); Kannar v. Alticor, Inc., No. CV 09-2500 PSG (VBKx), 2010 U.S. Dist. LEXIS 32681, at *15 (C.D. Cal. Mar. 10, 2010) (rejecting “conclusory” claims of need for additional discovery). That is because it cannot. As noted in Dusseault’s motion, all the facts relating to Plaintiff’s efforts to mitigate damage, and its unclean hands, are within its own possession. See Kannar, 2010 U.S. Dist. LEXIS 32681, at *15 (“As the information relied upon in the amendment is within the Plaintiff's possession, granting leave to amend will not prejudice Plaintiff.”); In re Northrop Grumman Corp. Erisa Litig., 2010 U.S. Dist. LEXIS 148742, at *38-39 (“Since it is undisputed that the new allegations and claims are based on documents produced by defendants, it seems likely that information concerning the new allegations is in defendants' possession.”). Ms. Dusseault and Mr. Gray cannot tell Plaintiff what actions Plaintiff did or did not take to mitigate its damages. Nor can Mr. Orens or Mr. Stone. Only Plaintiff has such information in its possession. Indeed, it was Plaintiff’s own 30(b)(6) witness that provided the testimony giving rise to the instant motion in the first place. (See Motion at p. 4.) There is no prejudice here. B. A Month Is Not Undue Delay Plaintiff also claims that the motion should be denied because of undue delay. In support of this claim, Plaintiff asserts that “undue delay alone is a sufficient basis to deny amendment of a pleading.” (Opp. at 6.) Case 2:17-cv-04062-SVW-SS Document 251 Filed 02/11/19 Page 8 of 12 Page ID #:9585 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 5 DUSSEAULT’S REPLY ISO MOTION FOR LEAVE TO FILE AMENDED ANSWER That is not correct. The overwhelming authority confirms that delay, standing alone, is insufficient to deny leave to amend. See, e.g., DCD Programs, 833 F.2d at 187 (“[D]elay alone is not sufficient to justify the denial of a motion requesting leave to amend.”); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712-13 (9th Cir. 2001) (“[U]ndue delay by itself is insufficient to justify denying a motion to amend.”) (quoting Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999)); United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir. 2016) (same). Plaintiff’s cases are not to the contrary. In each of them, the Ninth Circuit confirmed that the other party would be prejudiced by the amendment. See Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 799 (9th Cir. 1991) (“Ponsoldt would have been unreasonably prejudiced by the addition of numerous new claims so close to trial.”); Jackson v. Bank of Haw., 902 F.2d 1385, 1388 (9th Cir. 1990) (“The lower court correctly determined, therefore, that the appellees would be unduly prejudiced by permitting the appellants to file an amended complaint.”); Acri v. Int'l Asso. of Machinists & Aerospace Workers, 781 F.2d 1393, 1398-99 (9th Cir. 1986) (noting district court found that “allowing amendment would prejudice the Union”); Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994) (“The district court found that Medstone would suffer prejudice if Kaplan were allowed to amend the complaint. . . .”). In any event, there was no undue delay here. Plaintiff claims Ms. Dusseault knew all along that it had taken efforts to recover the private key, and “[i]t therefore beggars belief to suggest that Ms. Dusseault was somehow unaware of Plaintiff’s efforts to locate the Android Key until December of 2018.” (Opp. at 7.) Plaintiff misses the relevant issue. The new facts that were uncovered were not about “Plaintiff’s efforts to locate the” key—they were exactly the opposite. Ms. Dusseault first learned in December 2018 about Plaintiff’s failure to take the most reasonable and straightforward efforts to locate the key. It was not until Mr. Kolotrones’ deposition—in December 2018—that Ms. Dusseault learned that Plaintiff failed to seek recovery from the one person most likely to have possessed it. Plaintiff Case 2:17-cv-04062-SVW-SS Document 251 Filed 02/11/19 Page 9 of 12 Page ID #:9586 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 6 DUSSEAULT’S REPLY ISO MOTION FOR LEAVE TO FILE AMENDED ANSWER has not cited to any testimony or documentary evidence putting Dusseault on notice of its failure to contact Mr. Ayerde prior to December 2018. That is the critical issue. As Plaintiff confirms, Plaintiff filed her motion approximately one month later. Given the Local Rules, which require a meet and confer occur seven days prior to the filing of any motion (see L.R. 7-3), the total time spent was just over three weeks. Under no circumstances can that be undue delay. See, e.g., Bates v. Jones, No. C 95- 2638 CW, 1996 U.S. Dist. LEXIS 20998, at *22 (N.D. Cal. May 30, 1996) (no undue delay where “Plaintiffs brought their motion for leave to amend within one month of discovering the [relevant] facts”); Thieme v. Cobb, No. 13-cv-03827-MEJ, 2016 U.S. Dist. LEXIS 88909, at *16 n.8 (N.D. Cal. July 8, 2016) (two month delay was acceptable); Radware Ltd. v. F5 Networks, Inc., No. C-13-2024 RMW, 2014 U.S. Dist. LEXIS 103215, at *11 (N.D. Cal. July 28, 2014) (“The court holds that, under these particular facts, three months' delay in moving for leave to amend does not undermine Radware’s diligence.”). Indeed, the cases cited by Plaintiff had far longer delays, of eight months and a year, respectively. Texaco, 939 F.2d at 798; Jackson, 902 F.2d at 1388. C. Dusseault’s Amendment Is Not Futile Nor is Dusseault’s amendment futile. Plaintiff submits several facts relating to efforts it took to recover the key, and alleged reasons it couldn’t have known Mr. Ayerde had the key. (Opp. at pp. 7-9.) These claims fail as a factual matter given Kolokotrones’ own testimony that Mr. Ayerde was the Google Android developer (see Kolokotrones Depo. Tr., pp. 321:9-13; 322:5-323:24, Naim Dec., Ex. 1), and therefore should have had the Google private key. But more importantly, they are wholly irrelevant here. On a motion for leave to amend, Ms. Dusseault need not prove she will prevail at trial. If any possible set of facts would support the defense, that is sufficient. See Miller v. Rykoff-Sexton. Inc., 845 F.2d 209, 214 (9th Cir. 1988) (“[A] proposed amendment is futile only if no set of Case 2:17-cv-04062-SVW-SS Document 251 Filed 02/11/19 Page 10 of 12 Page ID #:9587 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 7 DUSSEAULT’S REPLY ISO MOTION FOR LEAVE TO FILE AMENDED ANSWER facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.”). Plaintiff attempts to engage in a dispute of facts related to Dusseault’s defenses. That is exactly the type of dispute that is inappropriate here, and is reserved for summary judgment or trial. See, e.g., Hynix Semiconductor, Inc. v. Toshiba Corp., No. C-04-04708 VRW, 2006 U.S. Dist. LEXIS 82148, at *6-7 (N.D. Cal. Oct. 31, 2006) (“In view of Rule 15(a)’s permissive standard, courts ordinarily defer consideration of challenges to the merits of a proposed amended pleading until after leave to amend is granted and the amended pleading is filed. . . . Hynix's arguments should be addressed in a motion to dismiss or for summary judgment, not in an opposition to the present motion for leave to amend.”); Lindsey v. Elsevier Inc., No. 16cv959-GPC(DHB), 2017 U.S. Dist. LEXIS 129960, at *21 (S.D. Cal. Aug. 15, 2017) (granting amendment where defendant “[did] not dispute whether the elements of conversion have been sufficiently alleged but improperly dispute[d] the facts alleged”); Futurelogic, Inc. v. Transact Techs., Inc., No. CV 05-03754 MMM (CTx), 2007 U.S. Dist. LEXIS 104951, at *33 (C.D. Cal. Oct. 29, 2007) (“[A]n amended complaint cannot be deemed futile simply because there is a factual dispute respecting the viability of the claim.”); Starcity Capital, LLC v. Bio-Matrix Sci. Grp., LLC, No. 13CV1394 BEN (JLB), 2014 U.S. Dist. LEXIS 162845, at *7 (S.D. Cal. Nov. 19, 2014) (rejecting arguments on futility which “raise[d] disputed issues of fact not appropriate for resolution on a motion for leave to amend”). Dusseault’s defenses are not futile. Plaintiff’s factual disputes fail to establish they are improperly pled. D. Plaintiff Concedes There Is No Bad Faith Finally, Plaintiff wholly concedes there is no bad faith here. The only argument it makes on this issue is in a single footnote, which claims that “the timing of Ms. Dussealt’s motion also suggests the possibility of dilatory motive.” (Opp. at p. 9 n.2.) Case 2:17-cv-04062-SVW-SS Document 251 Filed 02/11/19 Page 11 of 12 Page ID #:9588 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 8 DUSSEAULT’S REPLY ISO MOTION FOR LEAVE TO FILE AMENDED ANSWER As discussed above, Ms. Dusseault filed her motion as quickly as she could. (See supra Section II(B).) In any event, Ms. Dusseault seeks no delay or modification to the Court’s schedule whatsoever. Plaintiff’s supposition of the “possibility” of a dilatory motive fails to meet its burden to show bad faith. See, e.g., Agron, Inc. v. Chien-Lu Lin, No. CV 03-05872 MMM (JWJx), 2004 U.S. Dist. LEXIS 26605, at *43 (C.D. Cal. Mar. 15, 2004) (placing burden to show bad faith on party opposing amendment). III. CONCLUSION For the foregoing reasons, Defendant request that the Court grant her motion and permit her to file an amended answer. LAW OFFICES OF CYRUS S. NAIM Dated: January 25, 2019 By: /s/ Cyrus S. Naim Cyrus S. Naim Attorney for Defendant Lisa Dusseault Case 2:17-cv-04062-SVW-SS Document 251 Filed 02/11/19 Page 12 of 12 Page ID #:9589