King v. Biter et al
Filing
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ORDER GRANTING Plaintiff's Motion to Amend the Complaint, Directing Clerk of Court to File Second Amended Complaint, and GRANTING Defendants Thirty Days to File a Response 43 , 45 , 47 , signed by Magistrate Judge Stanley A. Boone on 7/21/17. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LARRY DONNELL KING, SR.,
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Plaintiff,
v.
M.D. BITER, et al.,
Defendants.
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Case No.: 1:15-cv-00414-LJO-SAB (PC)
ORDER GRANTING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT, DIRECTING CLERK
OF COURT TO FILE SECOND AMENDED
COMPLAINT, AND GRANTING DEFENDANTS
THIRTY DAYS TO FILE A RESPONSE
[ECF Nos. 43, 45, 47]
Plaintiff Larry Donnell King, Sr. is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion to amend the complaint, filed June 5, 2017.
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On July 5, 2017, Defendants filed a statement of non-opposition and request for thirty days to respond
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to the second amended complaint, and Plaintiff filed a reply on July 14, 2017.
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Plaintiff seeks to amend the complaint to clarify the date of the first incident as October 18,
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2011, and not August 10, 2011. Defendants do not oppose Plaintiff’s request to amend the complaint
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and request thirty days to file a response thereto. Plaintiff argues that Defendants do not need
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additional time to respond to the amended complaint.
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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party=s
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pleading once as a matter of course twenty-one days after serving, or if a response was filed, within
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twenty-one days after service of the response. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may
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amend only by leave of the court or by written consent of the adverse party, and leave shall be freely
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given when justice so requires. Fed. R. Civ. P. 15(a).
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Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.’”
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AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R.
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Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices
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the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is
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futile.” AmerisourceBergen Corp., 465 F.3d at 951. Relevant to the futility factor, a plaintiff may not
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bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2);
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Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir.
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2007). The burden to demonstrate prejudice falls upon the party opposing the amendment. DCD
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Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent prejudice, or a strong showing
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of any of the remaining three factors, a presumptions exists under Rule 15(a) in favor of granting leave
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to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
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As previously stated, Plaintiff seeks to amend the complaint seeks to amend the complaint to
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clarify the date of the first incident as October 18, 2011, and not August 10, 2011. Defendants have
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submitted a statement of non-opposition. Allowing parties to amend based on information obtained
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through discovery is common and well established. Fru-Con Constr. Corp. v. Sacramento Mun. Util.
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Dist., No. CIV. S-05-583 LKK/GGH, 2006 WL 3733815, *15-16 (E.D. Cal. Dec. 15, 2006). In this
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instance, the Court finds that granting Plaintiff’s motion to amend would not prejudice Defendants, it
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was not brought in bad faith nor does it produce undue delay in the litigation as the motion was filed
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prior to deadline set forth in the Court’s March 8, 2017, scheduling order, and amendment is not futile.
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Accordingly, Plaintiff’s motion to amend will be granted, and in the interest of justice Defendants are
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granted thirty days to file a response.
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Based on the foregoing, it is HEREBY ORDERED that:
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1.
Plaintiff’s motion to amend is granted;
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2.
The Clerk of Court is directed to file Plaintiff’s second amended complaint, lodged on
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June 12, 2017 (Doc. No. 43); and
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Defendants are granted thirty days to file a response to Plaintiff’s second amended
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complaint.
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IT IS SO ORDERED.
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Dated:
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July 21, 2017
UNITED STATES MAGISTRATE JUDGE
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