Case No. C05-1706L.
March 15, 2006
ORDER GRANTING IN PART AND DENYING IN PART THIRD MOTION TO AMEND COMPLAINT
This matter comes before the Court on plaintiff's third motion to amend his complaint. (Dkt. #131). Plaintiff seeks to add a new defendant, Warner Music SP, Inc. ("WMSP") and to add a new claim against defendant David Cross.
For the reasons set forth below, the Court grants the motion in part and denies it in part.
Leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The Court considers four factors in deciding whether to grant leave to amend: "bad faith, undue delay, prejudice to the opposing party, and the futility of amendment." Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994). A proposed amendment is futile if it could be defeated by a motion to dismiss or if plaintiff cannot prevail on the merits.See, e.g., Smith v. Commanding Officer, 555 F.2d 234, 235 (9th Cir. 1977).
Plaintiff contends that he recently learned that proposed new defendant WMSP is an "indispensable party" and the owner of Sub Pop Records. Plaintiff notes that if he is permitted to join WMSP, he "would drop Defendant Sub Pop Ltd. as a party." Plaintiff's Motion at p. 1. Defendants have not objected to those proposed amendments. Accordingly, plaintiff's request to amend to add WMSP and voluntarily dismiss Sub Pop Ltd. is granted.
Plaintiff also seeks to add a claim against Cross pursuant to the Tennessee wiretapping statute. The statute provides a civil remedy for "any aggrieved person whose wire, oral or electronic communication is intentionally intercepted, disclosed, or used in violation of § 39-13-601 or title 40, chapter 6, part 3. . . ." Tenn. Code Ann. § 39-13-603. Defendants object to plaintiff's request to add the new claim based on undue delay, prejudice to defendants, and futility of the amendment. Specifically, defendants contend that plaintiff's delay has been undue for three reasons: (1) plaintiff has had two prior opportunities to amend his complaint, but failed to add this claim; (2) it appears that plaintiff seeks to add the new claim to defeat defendants' pending dispositive motion which was noted for the same day as this motion, and (3) the only reason plaintiff offers for failing to assert the claim earlier is that he mistakenly believed the claim "was barred by Tennessee's general one (1) year [statute] of limitation." Plaintiff's Motion at p. 1. Defendants also contend, and the Court finds, that the belated amendment would be prejudicial to them as they have responded to substantive motions and have a motion for summary judgment pending. Allowing plaintiff to add a new claim would delay consideration of that motion.
Defendants also argue that the proposed wiretapping claim is futile because the statute does not cover the type of communication at issue here, where one party has consented to the "interception." Defendants note that plaintiff has "failed to show any evidence of an objective expectation of privacy or to allege any private communication to which David Cross was not present or a party." Defendants' Response at p. 9; see also Tennessee v. Munn, 56 S.W.3d 486, 497 (2001) (quoting Tenn. Code Ann. § 40-6-302(b), which applies when "no party to the communication has consented to the interception;" noting that the statute defines "oral communication" as "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying that expectation"). Defendants' argument has merit. Furthermore, plaintiff did not file a reply is support of his motion, so he has not contested or rebutted defendants' argument. Nor has he identified any communication to which the Tennessee wiretapping statute would apply. Because the addition of the wiretapping claim would result in some prejudice to defendants and would be futile, the Court denies the request to add that claim.
Defendants also argue that the Tennessee wiretapping claim is time barred with respect to any proposed new defendants. Although that argument has merit, plaintiff only asserts the claim against defendant Cross.
The allegation in the complaint is vague and does not specifically identify any communications subject to the wiretapping statute. Proposed Second Amended Complaint (Dkt. #131-2) at ¶ 19 (alleging claim against Cross for "intentionally intercepting an oral communications [sic] of Plaintiff with a video recording device and then disclosing and disseminating its contents on a CD/DVD").
Plaintiff also requests that the Court impose sanctions on defendants based on their "willful failure to disclose to Plaintiff that [WMSP] was a real indispensable party of interest that owns Sub Pop Records until February 20, 2006" even though plaintiff had "demanded" the information during the parties' Rule 26(f) conference. Plaintiff's Motion at p. 3. Plaintiff has not shown that defendants were obligated to identify the proper defendants for him or that they violated their obligations under the discovery rules. Accordingly, plaintiff's request for sanctions is denied.
Accordingly, plaintiff's motion to amend is GRANTED IN PART AND DENIED IN PART. Plaintiff may file an amended complaint that is consistent with this order within twenty days of the date of this order. The amended complaint shall not add new allegations or parties beyond those included in plaintiff's second proposed amended complaint and authorized by this order.