Opinion
Case No. C 07-05795 JF (HRL).
November 3, 2008
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT, [re: docket no. 50, 51]
This disposition is not designated for publication in the official reports.
Plaintiff Everflow Technology Corp. ("Everflow") seeks leave to file a first amended complaint. The motion is opposed by Defendant Millenium Electronics, Inc. ("MEI"). The Court has considered the moving and responding papers as well as the oral arguments presented at the hearing on October 27, 2008. For the reasons set forth below, the motion will be granted
I. BACKGROUND
Everflow is a specialized fan manufacturer located in Taiwan. The fans are used by large computer manufacturers that incorporate them into computers, which then are sold on the retail market. MEI is a California corporation located in San Jose, California. It markets cooling systems directly to computer assembly companies for incorporation into the individual personal computer designs sold by those companies. MEI used Everflow's fans as part of MEI's cooling systems. Everflow entered into a series of agreements to deliver computer cooling products to MEI. MEI allegedly agreed to wire payment for each shipment of goods within forty-five (45) days. Everflow claims that MEI ordered goods from Everflow and took delivery but has failed to make payments in excess of $2,000,000.Everflow filed the instant action on November 14, 2007, seeking to recover the payments allegedly owed under the contract. In the course of discovery, Everflow subpoenaed MEI's bank records, which revealed wire transfers from MEI to James Loro, one of the company's two shareholders who also served as the company's CEO, CFO and Director. The records reflected other wire transfers out of MEI's account to Peralta Investment Group ("Peralta"). Upon discovery of these and other facts, Everflow filed the instant motion on September 19, 2008, seeking to add proposed defendants Jamel Enterprises, Lororco Sales, Inc., James Loro, Melva Loro, Nadene Loro Snapp, and Peralta Investment, LLC; and seeking to assert new claims for fraud, alter ego, unfair competition, fraudulent transfer and conspiracy
II. LEGAL STANDARD
A request for leave to amend is governed by Federal Rule of Civil Procedure 15(a). "Rule 15(a) declares that leave to amend `shall be freely given when justice so requires'; this mandate is to be heeded." Foman v. Davis, 371 U.S. 178, 182 (1962). "[T]he grant or denial of an opportunity to amend is within the discretion of the District Court," id., and the standard for leave under Rule 15(a) is "very liberal," AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). In deciding whether to grant leave to amend, courts consider several factors, including: (1) undue delay by the party seeking the amendment; (2) prejudice to the opposing party; (3) bad faith; (4) futility of amendment; and (5) whether the party previously has amended its pleadings. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
III. DISCUSSION
Everflow seeks leave to file its first amended complaint to add new defendants and claims based on newly discovered facts. The Ninth Circuit has held that discovery of new facts after a complaint was filed may warrant granting leave to amend. See Wittmayer v. U. S., 118 F.2d 808, 809 (9th Cir. 1941) (upholding leave to amend granted ten months after commencement of the suit); see also Abels v. JBC Legal Group, P.C., 229 F.R.D. 152, 156 (N.D. Cal. 2005) (granting leave to amend where plaintiff "acted quickly once identifying [new facts] and discovery is not complete"). Here, within a month of discovering new facts in the case, Everflow sought a stipulation from MEI for the filing of a first amended complaint; on MEI's refusal, Everflow filed the instant motion, which represents its first attempt to amend the original complaint. Accordingly, leave to amend appears appropriate.
MEI argues in opposition to the motion that (1) Everflow seeks leave to amend in bad faith, and (2) amendment to add the alter ego claim would be futile.
A. Everflow Does Not Seek Leave To Amend In Bad Faith
Everflow asserts that examination of MEI's bank records revealed "wholesale looting" of MEI's funds by its principals during the time MEI was negotiating with Everflow. Furthermore, Everflow claims that it recently discovered that MEI's two shareholders began a parallel business operation to continue the same line of work while avoiding MEI's creditors. In support of these assertions, Everflow attached bank records and incorporation papers containing the names of the proposed defendants.
Despite the well-supported motion, MEI argues that Everflow ignored two documents in a bad faith attempt to make the proposed defendants personally liable for MEI's alleged debts. MEI offers UCC Financing Statements filed by the Loro Living Trust and Peralta. MEI argues that these statements establish that its wire payments to James Loro and Peralta were to "secured creditors," and that Everflow's interest as an unsecured creditor is subordinate to that of a creditor having a perfected security interest. However, MEI fails to establish that Everflow had access to these records. Moreover, even if Everflow did have access to the records and failed to acknowledge their existence in its moving papers, MEI does not offer any explanation for its payments to Peralta.
MEI also argues that Everflow seeks to exert pressure on James Loro to settle the action on terms favorable to Everflow. The amended complaint would add as defendants Melva Loro and Nadene Loro Snapp, the wife and daughter of MEI's President James Loro, as well as Loro himself. Everflow describes the various roles the three family members had in the different companies and attaches numerous exhibits supporting its allegations. MEI does not directly address the controlling roles each family member appears to have had in the closely held companies. Although pressure to settle may increase with the filing of the amended complaint, that fact alone does not establish that amendment is sought in bad faith.
B. Everflow's Amendment Would Not Be Futile
Challenges to a pleading usually are deferred until after the amended pleading has been filed, but leave to amend sometimes may be denied if the proposed amendment is futile. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 188 (9th Cir. 1987). "However, a proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). Here, the amended complaint would add claims for fraud, alter ego, unfair competition, fraudulent transfer and conspiracy. MEI argues that the corporate veil doctrine prevents Everflow's assertion of the proposed claims, and the alter ego claim in particular.
Specifically, Everflow proposes to add the following new claims: (1) fraud count one (against MEI and proposed defendant James Loro); (2) fraud count two (against MEI, Jamel Enterprises, Peralta, James Loro, Melva Loro and Nadene Loro Snapp); (3) alter ego; (4) unfair competition in violation of California Business and Professions Code § 17200; (5) fraudulent transfer in violation of California Civil Code § 3439.05; and (6) conspiracy in violation of California Civil Code § 3439.05.
In California, a corporation may be regarded as the alter ego of the stockholders. Associated Vendors, Inc. v. Oakland Meat Co., 210 Cal. App. 2d 825, 836 (1962). "The two requirements are (1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist, and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow." Id. at 837. Here, MEI cites only to the general purpose of the corporate veil doctrine, maintaining that "[t]he purpose of the doctrine is not to protect every unsatisfied creditor." Id. at 842. By definition, then, the doctrine protects at least some unsatisfied creditors. Everflow sets out and addresses facts supporting the first and second requirement for its alter ego claim. It offers evidence that the Loros family had a "unity of interest and ownership" in MEI, and it alleges that the MEI and the proposed defendants "engaged in a concerted effort to hide assets from creditors." At the pleading stage, these allegations suffice to make out an alter ego claim.
IV. ORDER
Good cause therefore appearing, IT IS HEREBY ORDERED that Everflow's motion for leave to file its first amended complaint is GRANTED. The amended complaint shall be filed and served within ten (10) days of the date of this order.