Herrera et al v. California Highway Patrol

Filing 31

ORDER signed by District Judge Troy L. Nunley on 5/9/2017 DENYING 26 Motion for leave to file a second amended complaint. In light of this order, and in conjunction with the Court's prior order granting CHP's motion to dismiss 25 , this case is hereby DISMISSED with prejudice. CASE CLOSED(Washington, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PETE HERRERA and LUPE HERRERA,

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Plaintiffs,

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No. 1:15-cv-01882-TLN-SAB

v.

ORDER

CALIFORNIA HIGHWAY PATROL,

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Defendant.

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Plaintiffs Pete Herrera (“Pete”) and Lupe Herrera (collectively “the Herreras”) seek the

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return of $90,000 in cash that was seized during a traffic stop. The matter is before the Court on

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the Herreras’ Motion for Leave to File a Second Amended Complaint. (ECF No. 26.) Defendant

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California Highway Patrol (“CHP”) opposes the motion. (ECF No. 28.) For the reasons set forth

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below, the Herreras’ motion is DENIED and the case is DISMISSED with prejudice.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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The Herreras allege that an unnamed CHP Officer, who turned out to be Officer Joel Platt

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(“Platt”), stopped Pete’s car while Pete was driving on Highway 99. (Compl., ECF No. 2 Ex. A,

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at ¶¶ 6–7.) Platt evidently stopped Pete’s car at the behest of Drug Enforcement Agency

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(“DEA”) agents, although the complaint is silent on this point. (Rashid Decl., ECF No. 13-2 at

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¶ 4(a).) Platt asked Pete for consent to search the car, but the complaint does not specify whether

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Pete consented to the search. (ECF No. 2 Ex. A, at ¶ 7.) Platt discovered $90,000 in cash in the
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car, which he seized. (ECF No. 2 Ex. A, at ¶¶ 7–8.) The money is currently the subject of

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criminal forfeiture proceedings in the Fresno division of this district. (ECF No. 13-2 at ¶ 4.)

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The Herreras filed this lawsuit against CHP in state court seeking a declaratory judgment

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that they are the rightful owners of the seized money. (ECF No. 2 Ex. A, at ¶¶ 12–15.) A year

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later, they filed a first amended complaint (FAC”), adding a claim under 42 U.S.C. § 1983 for

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“Deprivation of Property Without Due Process of Law.” (ECF No. 2 Ex. A, at ¶¶ 16–21.) CHP

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removed the case to federal court. (ECF No. 2.) The parties stipulated to a further amendment of

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the FAC that removed the Herreras’ claim seeking a declaratory judgment and left only their

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§ 1983 claim. (Stip. and Order, ECF No. 12.)

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A few days later, CHP moved to dismiss the case pursuant to Rule 12(b)(6) of the Federal

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Rules of Civil Procedure. (Mot., ECF No. 13.) CHP argued it was not amenable to suit under

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§ 1983 because it is an arm of the state, not a “person.” (ECF No. 13-1 at 5 (citing Pittman v. Or.

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Emp’t Dep’t, 509 F.3d 1065, 1072 (9th Cir. 2007).) The Herreras conceded the point, but sought

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leave in their opposition brief to amend their complaint once more, naming Platt as a defendant so

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the case could proceed. (Opp’n, ECF No. 19 at 3.) The Court granted CHP’s motion to dismiss

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and denied the Herreras’ informal request for leave to amend, but allowed the Herreras fourteen

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days to file a formal motion requesting leave to amend. (Order, ECF No. 25 at 2–4.)

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The Herreras timely filed the instant motion seeking to add Platt and CHP Officer Jarrod

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Banta (“Banta”) as defendants. (ECF No. 26.) Pursuant to Local Rule 137(c), the Herreras

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attached their proposed second amended complaint (“SAC”) to their motion. (ECF No. 26-1 at

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5–10.)

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II.

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DISCUSSION
Motions to amend are governed by Rule 15(a) of the Federal Rules of Civil Procedure.

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Rule 15(a) provides that the Court “should freely give leave [to amend] when justice so requires.”

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Fed. R. Civ. P. 15(a)(2). In the Ninth Circuit, Rule 15(a) is applied with “extreme liberality.”

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003).

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Nevertheless, the Court retains discretion to grant or deny a motion for leave to amend.

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Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008). The Court considers
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five factors when assessing the propriety of a motion for leave to amend: (1) bad faith, (2) undue

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delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the

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plaintiffs have previously amended their complaint. Allen v. City of Beverly Hills, 911 F.2d 367,

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373 (9th Cir. 1990). The Court “need not apply all five factors” when two factors sufficiently

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persuade the Court to deny the motion—as they do here. Id. Those factors are undue delay and

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previous amendment.

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A. Undue Delay

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Although delay by itself is not a valid reason to deny a motion for leave to amend, DCD

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Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987), it is an appropriate factor for the

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Court to consider, Allen, 911 F.3d at 373. “Relevant to evaluating the delay issue is whether the

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moving party knew or should have known the facts and theories raised by the amendment in the

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original pleading.” Jackson v. Bank of Haw., 902 F.2d 1385, 1388 (9th Cir. 1990). The Ninth

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Circuit has held “that an eight month delay between the time of obtaining a relevant fact and

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seeking a leave to amend is unreasonable.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465

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F.3d 946, 953 (9th Cir. 2006) (citing Texaco Inc. v. Ponsoldt, 939 F.2d 794, 799 (9th Cir. 1991)).

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Here, the Herreras’ proposed amendment comes too late and with no explanation. They

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filed this lawsuit on November 10, 2014 and filed the FAC a year later on November 13, 2015.

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(ECF No. 2 at 2.) They first sought leave to amend to add Platt as a defendant on May 19, 2016,

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in their opposition to CHP’s motion to dismiss. (ECF No. 19 at 3.) They filed the instant motion

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seeking to add Platt and Banta as defendants on February 27, 2017. (ECF No. 26.) Thus, nearly

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sixth months elapsed between the date the Herreras filed the FAC and the date they first broached

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the subject of adding Platt as a defendant. And roughly fifteen months elapsed between the date

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the Herreras filed the FAC and the date they properly sought leave to amend. Yet the Herreras

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were aware of Platt and Banta’s involvement in the case at least as early as the filing of the FAC.

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Indeed, Banta is identified by name in the FAC, and both Platt and Banta are identified by name

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in the Evidence Receipt that Platt gave Pete after the seizure, which is attached as an exhibit to

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the FAC. (ECF No. 2 Ex. A.) In short, the Herreras “knew . . . the facts and theories raised by

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the amendment” at the time of their first amended complaint. Jackson, 902 F.2d at 1388.
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B. Previous Amendment

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Along the same lines, the fact that the Herreras have previously amended their complaint

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without attempting to add Platt and Banta also militates against granting their motion for leave to

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amend. The Ninth Circuit has held that a district court has discretion to deny a motion to amend a

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complaint “when the movant present[s] no new facts but only new theories and provide[s] no

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satisfactory explanation for his failure to fully develop his contentions originally.” Allen, 911

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F.2d at 374 (quotation omitted). That is the case here. The factual allegations of the SAC are

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virtually identical to those in the FAC. The only relevant difference is that the SAC identifies

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Platt by name, whereas the FAC refers to him as “a California Highway Patrol Officer” and

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includes his name only on the attached Evidence Receipt. (Compare ECF No. 2 Ex. A at ¶ 7 with

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ECF No. 26-1 Ex. A at ¶ 7.) In short, the Herreras present no new facts, only new theories—

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theories they were aware of at the time the FAC was filed.

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III.

CONCLUSION
The Herreras do not explain why they only now seek leave to add Platt and Banta as

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defendants. They were aware at the time they filed the FAC that Platt and Banta were the

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individuals they now seek to sue. The only inference supported by the record is that the Herreras

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are trying to salvage a mismanaged case by converting Herrera v. CHP into a different lawsuit

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against entirely different defendants. That goal renders this case unlike the mine-run lawsuits in

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which leave should be freely granted under Rule 15(a).

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For the foregoing reasons, it is hereby ORDERED as follows:

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1. The Herreras’ motion for leave to file a second amended complaint (ECF No. 26) is

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DENIED.

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2. In light of this order, and in conjunction with the Court’s prior order granting CHP’s

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motion to dismiss (ECF No. 25), this case is hereby DISMISSED with prejudice.

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IT IS SO ORDERED.
Dated: May 9, 2017

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Troy L. Nunley
United States District Judge