United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Yim You, United States Magistrate Judge
case involves claims by the Estate of Marjory Gail Thomas
Osborn-Vincent (“Decedent”). Named defendants
include Ameriprise Financial, Inc. (“AFI”),
Ameriprise Financial Services, Inc. (“AFSI”), and
Riversource Life Insurance Company
(“Riversource”). In its Amended Complaint
(“A/C”) (ECF #20), the Estate alleges
that it was the named beneficiary of a single-premium,
universal life insurance policy (“the Policy”)
purchased by Decedent on August 4, 1989, that provided a
death benefit of $273, 125.00. A/C ¶ 6. The Estate
alleges that defendants: (1) on August 14, 1991, reduced the
death benefit in the Policy to $150, 000.00; and (2) between
2008 and 2015, violated the terms of the Policy by increasing
the cost of the insurance and/or other policy costs, thereby
consuming the cash value of the Policy and causing it to
lapse in November 2015, four months before Decedent's
death on March 8, 2016. A/C ¶¶ 7, 9-12.
this case named only AFSI as a defendant. Complaint 1, ECF
#1. However, this court permitted the Estate to file the
Amended Complaint, adding AFI and Riversource. ECF #18
(granting Mot. to Amend, ECF #12).
Amended Complaint alleges claims for: (1) breach of contract
(“First Claim”); (2) breach of the duty of good
faith and fair dealing (“Second Claim”); and (3)
elder abuse under ORS Chapter 124 (“Third
Claim”). The Estate has now filed a second Motion to
Amend the Complaint (ECF #30). The proposed Second Amended
Complaint (“SAC”) would add a Fourth Claim for
common law fraud and a Fifth Claim for rescission, as well as
a series of additional factual allegations in support of
those claims. ECF #30-1, Ex. 1 Defendants filed an
opposition to the Estate's motion, combined with
AFI's Motion to Dismiss for Lack of Personal Jurisdiction
Pursuant to FRCP 12(B)(2) (“Comb. Opp.”, ECF
#34). In separate Findings and Recommendations, to be
entered immediately after entry of this Opinion and Order,
this court concludes that AFI's motion should be granted
and that one portion of the Estate's Motion to Amend
(addition of the Fifth Claim) should be disallowed. For the
reasons in this Opinion and Order, the Estate's Motion to
Amend is GRANTED to the extend it seeks to add a Fourth Claim
for common law fraud.
Combined Motion in Opposition
“Combined” Opposition to the Estate's Motion
to Amend and Motion to Dismiss is not permitted under Local
Rule 7-1(b), which provides that “[m]otions may not be
combined with any response, reply, or other pleading.”
Nevertheless, AFI's motion occupies an entirely separate
section and AFI has complied with the certification of
conferral requirements with regard to its motion. Comb. Opp.
4, 21-28, ECF #34. Thus, this court will consider AFI's
motion in separately filed Findings and Recommendations.
Addition of the Fourth Claim for Fraud
Estate seeks to add a Fourth Claim for Fraud and a Fifth
Claim for Rescission. For the reasons set forth in the
accompanying Findings and Recommendations, the motion to
dismiss the Fifth Claim should be granted. However, for the
reasons that follow, the Fourth Claim is allowed.
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) (internal
quotation marks omitted). A ruling on a requested amendment
is reviewed for an abuse of discretion. Ariz.
Students' Ass'n v. Ariz. Bd. of Regents, 824
F.3d 858, 871 (9th Cir. 2016) (citations omitted). When
exercising its discretion on a motion to amend, the court
should be guided by the underlying purpose of FRCP 15(a),
which is “to facilitate decisions on merits, rather
than on the pleadings or technicalities.” Novak v.
United States, 795 F.3d 1012, 1020 (9th Cir. 2015)
(citation omitted). Thus, leave to amend is to be granted
with “extreme liberality.” Desertrain v. City
of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014);
see also Eminence Capital, LLC v. Aspeon, Inc., 316
F.3d 1048, 1051 (9th Cir. 2003) (citation omitted).
court may consider factors “such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment” and
deny leave to amend on those or similar grounds.
Foman, 371 U.S. at 182. However, “outright
refusal to grant leave without any justifying reason
appearing for the denial is not an exercise of discretion; it
is merely abuse of that discretion and inconsistent with the
spirit of the Federal Rules.” Id.
prejudice, there is a strong presumption in favor of granting
leave to amend. Eminence Capital, LLC, 316 F.3d at
1052 (citation omitted). Nevertheless, futility may support
denial of a motion to amend if it is clear that the pleading,
as amended, is subject to dismissal and cannot be cured by
amendment. United States v. Corinthian Colleges, 655
F.3d 984, 995 (9th Cir. 2011) (citations omitted).
“Leave to amend is warranted if the deficiencies can be
cured with additional allegations that are consistent with