SAN FRANCISCO (Legal Newsline) - The U.S. Court of Appeals for the Ninth Circuit has reversed a California federal court's decision denying an asbestos plaintiff's request to amend his complaint.

Plaintiffs Dennis and Tho Hellervik appealed a decision out of the United States District Court for the Central District of California, where Judge R. Gary Klausner dismissed the complaint alleging asbestos-related injuries and denied leave to amend the complaint.

The appeals court wrote that they must not review the decision for abuse of discretion in order to decide whether the complaint was properly dismissed.

The opinion states that "dismissal with prejudice and without leave to amend is not appropriate unless it is clear on de novo review that the complaint could not be saved by amendment."

In the Hellerviks' case, the court explained that the only reason Klausner gave for denying leave to amend was that the plaintiffs "have already had two chances to state sufficient factual allegations to support their claims."

It concluded this is not a sufficient reason to deny amendment of a complaint.

Citing the Henry decision, it explained that leave should be granted unless the court determines the pleading "'could not possibly be cured by the allegation of other facts.'"

Based on this standard, the district court abused its discretion because it failed to provide a legitimate reason for withholding leave to amend.

As a result, the appeals court concluded that the Hellerviks should be permitted to file an amended complaint and remanded the case back to the district court.

The June 16 opinion was entered by circuit judges Raymond C. Fisher and Mary H. Murguia and District Judge Anthony J. Battaglia.

From Legal Newsline: Reach Heather Isringhausen Gvillo at

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