Cochran v. Aguirre, et al.
Filing
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ORDER DENYING 81 Plaintiff's Motion for Leave to Amend the Complaint and ORDER STRIKING 83 Plaintiff's Third Amended Complaint From the Record signed by Magistrate Judge Stanley A. Boone on 3/13/2017. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BILLY COY COCHRAN,
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Plaintiff,
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v.
E. AGUIRRE,
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Defendant.
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Case No.: 1:15-cv-01092-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
LEAVE TO AMEND THE COMPLAINT
[ECF No. 81]
Plaintiff Billy Coy Cochran is appearing pro se in this civil rights action pursuant to 42 U.S.C.
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§ 1983.
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Currently before the Court is Plaintiff’s motion for leave to amend the complaint, filed
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February 3, 2017. Defendant filed an opposition on February 23, 2017, and Plaintiff filed a reply on
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March 8, 2017.
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I.
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DISCUSSION
Both Federal Rules of Civil Procedure 15 and 16 govern leave to amend in this instance. Rule
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16(b) govern the issuance and modification of pretrial scheduling orders while Rule 15(a) govern
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amendment of pleadings. Both rules will be discussed below.
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A.
Federal Rule of Civil Procedure 16
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Under Rule 16 of the Federal Rules of Civil Procedure, a discovery and scheduling order
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controls the course of litigation unless the Court subsequently alters the original order. Fed R. Civ. P.
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16(d). Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b),
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and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d
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604, 609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a scheduling
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order must generally show that even with the exercise of due diligence, they cannot meet the
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requirement of that order. Id. The court may also consider the prejudice to the party opposing the
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modification. Id. If the party seeking to amend the scheduling order fails to show due diligence the
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inquiry should end and the court should not grant the motion to modify. Zivkovic v. Southern
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California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). A party may obtain relief from the
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court’s deadline date for discovery by demonstrating good cause for allowing further discovery. Fed.
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R. Civ. P. 16(b)(4).
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“Good cause may be found to exist where the moving party shows that it diligently assisted
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the court with creating a workable scheduling order, that it is unable to comply with the scheduling
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order’s deadlines due to matters that could not have reasonably bee foreseen at the time of the issuance
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of the scheduling order, and that it was diligent in seeking an amendment once it became apparent that
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the party could not comply with the scheduling order.” Kuschner Nationwide Credit, Inc., 256 F.R.D.
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684, 687 (E.D. Cal. 2009).
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In order to demonstrate diligence, Plaintiff must show whether he collaborated with the court
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in setting a schedule; whether matters that were not, and could not have been, foreseeable at the time
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of the scheduling conference caused the need for amendment; and whether the movant was diligent in
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seeking amendment once the need to amend became apparent. Johnson, 975 F.2d at 608.
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“[C]arelessness not compatible with a finding of diligence and offers no reason for a grant of relief.”
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Id. at 609. The district court is given broad discretion under Rule 16. Id. at 607.
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Plaintiff’s original complaint was filed on July 15, 2015. On August 14, 2015, the complaint
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was dismissed with leave to amend. Plaintiff filed an amended complaint on September 10, 2015. On
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November 25, 2015, the amended complaint was dismissed with leave to amend. Plaintiff filed a
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second amended complaint on January 4, 2016. On January 7, 2016, the Court found Plaintiff’s
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second amended complaint stated a cognizable claim against Defendant E. Aguirre for failure to
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protect, due process violation relating to the deprivation of his personal property, equal protection
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violation, and state law negligence.
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On May 10, 2016, Defendant filed an answer to the complaint. On May 11, 2016, the Court
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issued the discovery and scheduling order, setting a November 11, 2016, deadline to amend the
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pleadings.
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In his motion to amend, Plaintiff requests to add unspecified defendants, listed as “and others.”
(ECF No. 83, Mot. at 1-2.) Plaintiff submits a 92 page proposed third amended complaint, and lists
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fifty-six (56) defendants he seeks to add, and asserts new factual allegations, submits several
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additional exhibits, and a total of 245 claims.
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Plaintiff contends that he is diagnosed with mental disabilities, including major depressive
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disorder, posttraumatic stress disorder, anti-social personality disorder, polysubstance abuse, and
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gender identity disorder. He suffers from major depression at least once every two months for at least
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two weeks everyday all day, which causes severe difficulty and ability to think, concentrate, and make
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decisions. Plaintiff contends that he has exercised due diligence at all time in prosecuting this action.
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Plaintiff has not shown due diligence in seeking to amend the complaint. On April 25, 2016,
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Plaintiff filed a motion for extension of time to file a third amended complaint contending he was still
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in the process of exhausting his claims and would file once exhaustion was complete. (ECF No. 33.)
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On April 27, 2016, the Court denied Plaintiff’s motion, without prejudice, stating “it is not apparent
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from the motion what factual contentions Plaintiff seeks to present and amend by way of filing a third
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amended complaint,” and Plaintiff’s motion was defective as he failed to include a proposed amended
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complaint. (ECF No. 35, Order at 2.) In addition, as previously stated, the Court’s May 11, 2016,
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discovery and scheduling order provided a deadline to amend the pleading for November 11, 2016.
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(ECF No. 40.) Plaintiff has had several opportunities to amend his complaint, yet he failed to do so.
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Plaintiff now seeks to submit a fourth pleading setting forth unrelated and conclusory claims (245
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specifically), against fifty-six defendants. Plaintiff has simply failed to demonstrate due diligence on
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his part in seeking leave to amend.
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Plaintiff’s “carelessness is not compatible with a finding of diligence and offers no reason for a
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grant of relief, and there is simply no justifiable reason for Plaintiff’s delay in failing to amend the
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pleading. Plaintiff simply fails to explain why he did not seek to raise these claims earlier.
Even if Plaintiff met the due diligence standard under Rule 16(b), Plaintiff’s motion to amend
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must be denied under Rule 15.
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B.
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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 at any time before a responsive pleading is served. Otherwise, a
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party may amend only by leave of the court or by written consent of the adverse party, and leave shall
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Federal Rule of Civil Procedure 15
be freely 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).
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1.
Prior Amendments and Prejudice to Defendants
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The Court’s discretion to deny an amendment is “particularly broad” where a party has
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previously amended the pleadings. Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir. 1990).
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In addition, the most critical factor in determining whether to grant leave to amend is prejudice to the
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opposing party. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
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Allowing Plaintiff to file a third amended complaint at this juncture would cause prejudice to
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Defendants as he has already filed an answer to the complaint and a scheduling order has been issued.
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Indeed, the deadline to amend the pleadings expired on November 11, 2016, and the discovery
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deadline expired on January 11, 2017-prior to Plaintiff filing the instant motion. See, e.g., Zivkovic v.
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Southern California Edison, Co., 302 F.3d at 1087 (observing “[t]he requirement of additional
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discovery would have prejudiced [the defendant]” if leave to amend the complaint was granted);
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Lockheed Martin Corp. v. Network Solutions Inc., 194 F.3d 980, 986 (9th Cir. 1999) (“[a] need to
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reopen discovery and therefore delay the proceedings supports a district court’s finding of prejudice”).
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Plaintiff was previously granted leave to amend, and the operative second amended complaint alleged
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claims only against Defendant Aguirre. (ECF Nos. 15, 17, 23, 24.) Furthermore, Plaintiff failed to
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timely seek amendment, and this case has been pending for over a year and a half and some of the
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events presented in the third amended complaint took place as long as five years ago. Accordingly,
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these factors weigh against granting Plaintiff leave to amend.
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2.
Bad Faith
There is no evidence before the Court suggesting that Plaintiff acted in bad faith in seeking
amendment. Therefore, this factor does not weigh against amendment.
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3.
Undue Delay
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By itself, undue delay is insufficient to prevent the Court from granting leave to amend
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pleadings. Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973). However, in combination
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with other factors, delay may be sufficient to deny amendment. See Hurn v. Ret. Fund Trust of
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Plumbing, 648 F.2d 1252, 1254 (9th Cir. 1981).
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The undue delay analysis is similar to the due diligence analysis set forth above under Rule
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16(b). In support of his motion, Plaintiff argues that he has “exercised due diligence at all times in
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prosecuting this action…” (ECF No. 81 at 2.) However, Plaintiff has failed to explain why he did not
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exercise due diligence in seeking to amend the complaint. Plaintiff has had several opportunities to
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amend his complaint, yet he failed to do so. Accordingly, this factor weighs against granting Plaintiff
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leave to amend.
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4.
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Defendants have filed a motion for summary judgment for Plaintiff’s failure to exhaust the
Futile
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administrative remedies, and argue that Plaintiff has admitted that the new allegations were not
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exhausted before he filed the complaint and were only recently exhausted. While it is not entirely
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clear whether Plaintiff exhausted the administrative remedies, if he has not this factor weighs in favor
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of denial of motion to amend. However, irrespective of proper exhaustion as to the new claims, the
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motion to amend must be denied based on Plaintiff’s undue delay and prejudice to Defendant.
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II.
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CONCLUSION AND ORDER
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Based on the foregoing, it is HEREBY ORDERED that:
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Plaintiff’s motion for leave to amend the complaint is DENIED; and
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Plaintiff’s third amended complaint (Doc. 83) is STRICKEN from the record.
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IT IS SO ORDERED.
Dated:
March 13, 2017
UNITED STATES MAGISTRATE JUDGE
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