United States District Court, D. Oregon
RI KY ROOFING & SHEET METAL LLC, an Oregon limited liability company, Plaintiff,
DTL BUILDERS, INC., a Utah corporation, and THE CINCINATTI INSURANCE COMPANY, an Ohio surety, Defendants. DTL BUILDERS, INC., a Utah corporation, Plaintiff,
RI KY ROOFING & SHEET METAL LLC, an Oregon limited liability company, Defendant.
OPINION AND ORDER
A. RUSSO, United States Magistrate Judge
Builders, Inc. (“DTL”) moves for leave to file a
second amended counterclaim pursuant to Fed.R.Civ.P. 15(a).
For the reasons set forth below, DTL's motion is granted.
13, 2017, Ri Ky Roofing & Sheet METAL LLC (“Ri
Ky”) commenced a lawsuit in Linn County Circuit Court
against DTL, Waverly Land Management, and Winco Foods,
asserting claims for breach of contract, quantum meruit, and
foreclosure of a construction lien. First Am. Compl. Ex. A,
at ¶¶ 3-31 (No. 6:17-01592-JR, Doc. 1). Ri Ky's
claims are premised on allegedly unpaid construction services
provided to DTL between January and March 2017, pursuant to a
subcontract for improvements to a Winco Foods store located
in Albany, Oregon. Id.
August 11, 2017, DTL filed a complaint against Ri Ky alleging
breach of contract, negligence, and breach of the duty of
good faith and fair dealing based on the same construction
project and underlying subcontract. Compl. ¶¶ 5-20
(No. 6:17-cv-01251-JR, Doc. 1).
September 11, 2017, Ri Ky amended its complaint, reasserting
the same three claims against DTL and The Cincinnati
Insurance Company. Second Am. Compl. Ex. C, at ¶¶
4-29 (No. 6:17-01592-JR, Doc. 1). On October 10, 2017, DTL
removed Ri Ky's case to this Court.
October 18, 2017, the Court granted DTL's and Ri Ky's
stipulated motion to consolidate. On December 21, 2017, DTL
filed an amended complaint. See generally First Am.
Countercl. (No. 6:17-cv-01592-JR, Doc. 18). That same day, Ri
Ky moved to dismiss DTL's breach of the duty of good
faith and fair dealing claim (“good faith
claim”). Mot. to Dismiss (No. 6:17-cv-01592-JR, Doc.
February 7, 2018, the Court issued a Findings and
Recommendation (“F&R”) recommending that
DTL's good faith claim be dismissed without prejudice.
F&R (No. 6:17-cv-01592-JR, Doc. 26). On March 28, 2018,
Judge Aiken adopted the F&R. Order (Case No.
6:17-cv-01592-JR, Doc. 31). DTL moved for leave to file a
second amended counterclaim and Ri Ky objected. Mot. for
Leave to File Second Am. Countercl. (No. 6:17-cv-01251-JR,
Doc. 23); Response Objections to Motion for Leave to File
Second Am. Countercl. (No. 6:17-cv-01251-JR, Doc. 28).
to amend pleadings shall be “freely give[n] when
justice so requires.” Fed.R.Civ.P. 15(a). Courts apply
Rule 15 with “extreme liberality.” Eminence
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th
Cir. 2003) (citations omitted). In determining whether a
motion to amend should be granted, the court generally
considers five factors: (1) bad faith; (2) undue delay; (3)
prejudice to the opposing party; (4) futility; and (5)
whether the plaintiff has previously amended the complaint.
Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.
factors are not weighted equally: “futility of
amendment alone can justify the denial of a motion [to
amend].” Ahlmeyer v. Nev. Sys. of Higher
Educ., 555 F.3d 1051, 1055 (9th Cir. 2009). A proposed
amendment is futile if it would be immediately “subject
to dismissal.” Steckman v. Hart Brewing, Inc.,
143 F.3d 1293, 1298 (9th Cir. 1998). In making this
determination, the complaint is liberally construed in favor
of the plaintiff and its allegations are taken as true.
Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir.
1983). The proposed complaint must allege “enough facts
to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). That is, a plaintiff must present
allegations that are “enough to raise a right to relief
above the speculative level.” Id. at 555
argues that leave to amend its counterclaim should be granted
pursuant to Rule 15(a). Ri Ky asserts that the second amended
counterclaim should not be allowed because it fails to state
a claim for breach of the duty of good faith and fair dealing
upon which relief can be granted.
Oregon, “[t]he law imposes a duty of good faith and
fair dealing in the performance and enforcement of every
contract.” Hampton Tree Farms, Inc. v. Jewett,
320 Or. 599, 615, 892 P.2d 683 (1995) (citations omitted).
The purpose of this duty “is to prohibit improper
behavior [and] ensure that the parties will refrain from any
act that would have the effect of destroying or injuring the
right of the other party to receive the fruits of the
contract.” Klamath Off-Project Water Users, Inc. v.
Pacificorp, 237 Or.App. 434, 445, 240 P.3d 94 (2010)
(citation and internal quotations omitted). The good faith
doctrine is ...