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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`BRANDON BRISKIN,
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`Plaintiff,
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`v.
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`SHOPIFY INC., et al.,
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`Case No. 21-cv-06269-PJH
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`ORDER GRANTING PLAINTIFF’S
`MOTION FOR LEAVE TO FILE
`SECOND AMENDED COMPLAINT
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`Defendants.
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`Re: Dkt. No. 29, 30, 36
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`Before the court are defendant Shopify Inc.’s motion to dismiss (Dkt. 29),
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`defendant Shopify USA Inc.’s motion to dismiss (Dkt. 30), and plaintiff’s motion for leave
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`to file a second amended complaint (Dkt. 36). The matters are fully briefed and suitable
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`for resolution without oral argument. Accordingly, the hearing set for February 3, 2022, is
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`VACATED. Having read the parties’ papers and carefully considered their arguments
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`and the relevant legal authority, and good cause appearing, the court hereby GRANTS
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`plaintiff’s motion for leave to file a second amended complaint (“SAC”).
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`Leave to amend is freely given. Fed. R. Civ. Pro. 15. Courts commonly consider
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`four factors when determining whether to grant leave to amend: (1) bad faith on the part
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`of the movant; (2) undue delay; (3) prejudice to the opposing party; and (4) futility of the
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`proposed amendment. Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980,
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`986 (9th Cir. 1999); see also Foman v. Davis, 371 U.S. 178, 182 (1962). “[I]t is the
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`consideration of prejudice to the opposing party that carries the greatest weight.”
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`Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citing DCD
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`Programs, Ltd v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987)). “Absent prejudice, or a
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`Northern District of California
`United States District Court
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`Case 4:21-cv-06269-PJH Document 43 Filed 01/24/22 Page 2 of 2
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`strong showing of any of the remaining Foman factors, there exists a presumption under
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`Rule 15(a) in favor of granting leave to amend.” Id. (citation omitted). “Undue delay by
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`itself, however, is insufficient to justify denying a motion to amend.” Bowles v. Reade,
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`198 F.3d 752, 758 (9th Cir. 1999).
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`Here, defendants argue that plaintiff’s motion should be denied because all four
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`factors weigh against amendment. The court disagrees. This case remains in its
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`infancy, and even taking defendants’ representations as true, plaintiff’s conduct does not
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`yet reach the levels necessary to establish that leave to amend should be denied on any
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`of the Foman factors. Plaintiff seeks leave to amend prior to merits discovery (see Dkt.
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`33), prior to the setting of any deadlines, and prior even to resolution of defendants’ first
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`motions to dismiss. This timing demonstrates that defendants are not prejudiced by the
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`amendment. If the SAC is truly as defective as defendants assert, they will face little
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`difficulty in updating and refiling their briefs to seek dismissal.
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`Therefore, plaintiff’s motion for leave to file his second amended complaint is
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`GRANTED. Defendants’ motions to dismiss (Dkt. 29 and 30), responsive to the first
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`amended complaint, are thus TERMINATED. Plaintiff must file the second amended
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`complaint as a standalone document no later than January 25, 2022.
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`IT IS SO ORDERED.
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`Northern District of California
`United States District Court
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`Dated: January 24, 2022
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`/s/ Phyllis J. Hamilton
`PHYLLIS J. HAMILTON
`United States District Judge
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