David Velasco, individually and on behalf of all similarly-situated consumers; v. Paccar, Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID VELASCO, individually and on
behalf of all similarly-situated consumers;
et al.,
Plaintiffs - Appellants,
v.
PACCAR, INC.; et al.,
Defendants - Appellees,
and
KENWORTH TRUCK COMPANY,
Defendant.
No. 14-55975
D.C. No. 2:13-cv-09407-R-AS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted May 5, 2016
Pasadena, California
Before: FISHER, M. SMITH, and NGUYEN, Circuit Judges.
Plaintiffs, a putative class of freight-delivery truck drivers, appeal the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAY 17 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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dismissal of their Second Amended Complaint (SAC) without leave to amend. The
district court denied leave to amend because Plaintiffs had previously amended
their complaint twice in order to add named parties. Plaintiffs amended their
complaint first as a matter of course, and then a second time pursuant to a joint
stipulation that only permitted adding parties. Fed. R. Civ. P. 15(a). Reviewing for
abuse of discretion, Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049,
1072 (9th Cir. 2008), we affirm in part and reverse in part.
Courts should freely grant leave to amend absent evidence of bad faith,
futility, undue delay, prejudice to the opposing party, or a party’s “repeated failure
to cure deficiencies by amendments previously allowed.” Foman v. Davis, 371
U.S. 178, 182 (1962); see also Fed. R. Civ. P. 15(a)(2). We affirm the dismissal of
the SAC because the claims were deficiently pled in a number of respects. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). However, the district court
abused its discretion when it denied Plaintiffs an opportunity to cure these
deficiencies solely on account of the prior non-substantive amendments, without
making any findings regarding bad faith, futility, undue delay or prejudice. See
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)
(“Absent prejudice, or a strong showing of any of the remaining Foman factors,

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there exists a presumption under Rule 15(a) in favor of granting leave to amend.”).
We therefore vacate the dismissal with prejudice and remand with instructions that
Plaintiffs be allowed to file an amended complaint.
Costs are awarded to Plaintiffs.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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