Free Order on Motion to Amend/Correct - District Court of California - California

Case 3:08-cv-00027-L-JMA

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Filed 05/27/2008

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1 2 3 4 5 6 7 8 9 10 11 KATHLEEN VESTEVICH, 12 13 14 15 16 17 ) ) ) Plaintiff, ) ) v. ) UNITED STATES OF AMERICA, et al., ) ) ) Defendants. ) ) Civil No. 08-CV-27-L(JMA) ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

In this declaratory relief action, Plaintiff seeks to obtain a declaration that Medicare has

18 no lien on the proceeds of a wrongful death settlement. Plaintiff settled her claims with two 19 insurance companies following the death of her husband in a motor vehicle accident, and 20 Medicare asserted a lien on the proceeds. Plaintiff filed a motion for leave to amend her 21 complaint pursuant to Federal Rule of Civil Procedure 15(a) to add Michael O. Leavitt, 22 Secretary of the United States Department of Health and Human Services ("Secretary"), as a 23 party defendant. For the reasons which follow, Plaintiff's motion is GRANTED. 24 Plaintiff filed her complaint on January 4, 2008. Defendant United States answered on

25 March 17, 2008. In its answer, the government noted that the Secretary was the real party in 26 interest in this action. (Answer at 1.) After unsuccessfully seeking the government's agreement 27 to stipulate to amending the complaint to add the Secretary, Plaintiff moved for leave to amend 28 on April 14, 2008. In its opposition, the government does not dispute that the Secretary is a
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Case 3:08-cv-00027-L-JMA

Document 11

Filed 05/27/2008

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1 proper party defendant, but instead seeks a dismissal of all the remaining defendants. The 2 government also does not wish to waive its right to attack this court's authority to hear this case, 3 claiming that Plaintiff failed to exhaust administrative remedies. The government does not argue 4 that the amendment would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th 5 Cir. 1996). 6 Because leave to amend shall be freely given, see Fed. R. Civ. Proc. 15(a)(2), and the

7 parties are in agreement that the Secretary is the real party in interest, Plaintiff's motion for leave 8 to amend is GRANTED. To the extent the government seeks dismissal of the currently named 9 Defendants, the relief is DENIED without prejudice. Any party requesting a ruling from the 10 court must comply with Civil Local Rule 7.1, including obtaining a hearing date and filing a 11 motion. 12 13 For the foregoing reasons IT IS HEREBY ORDERED as follows: 1. Plaintiff's motion for leave to amend is GRANTED. No later than June 3, 2008,

14 Plaintiff shall file and serve the first amended complaint. Defendants shall file and serve a 15 response within the time provided in Federal Rule of Civil Procedure 15(a)(3). 16 2. The government's request to dismiss the currently named Defendants is DENIED

17 WITHOUT PREJUDICE to asserting it in an appropriate motion. 18 19 20 DATED: May 27, 2008 21 22 23 HON. JAN M. ADLER UNITED STATES MAGISTRATE JUDGE 24 ALL PARTIES/COUNSEL 25 26 27 28
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IT IS SO ORDERED.

M. James Lorenz United States District Court Judge

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