                              NOT FOR PUBLICATION                             FILED
                       UNITED STATES COURT OF APPEALS                          MAY 17 2016
                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT


 DAVID VELASCO, individually and on                   No.   14-55975
 behalf of all similarly-situated consumers;
 et al.,                                              D.C. No. 2:13-cv-09407-R-AS

               Plaintiffs - Appellants,
                                                      MEMORANDUM*
    v.

 PACCAR, INC.; et al.,

               Defendants - Appellees,

  and

 KENWORTH TRUCK COMPANY,

               Defendant.

                      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.
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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