Lipsey v. Davey, et al.

Filing 41

ORDER REGARDING Plaintiff's Request for Judicial Notice signed by Magistrate Judge Stanley A. Boone on 4/5/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER LIPSEY, JR.
Plaintiff,
v.
D. DAVEY, et al.,

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Defendants.

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Case No.: 1:17-cv-01706-DAD-SAB (PC)
ORDER REGARDING PLAINTIFF’S
REQUEST FOR JUDICIAL NOTICE
[ECF No. 35]

Plaintiff Christopher Lipsey, Jr. is appearing pro se and in form pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s request for judicial notice, filed January 11, 2019.

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I.

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RELEVANT BACKGROUND

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This action is proceeding against Defendant A. Randolph for retaliation in violation of the First
Amendment.
On October 19, 2018, Defendant filed a motion to dismiss Plaintiff’s claim under the
California Bane Act claim.
On November 28, 2018, the undersigned issued Findings and Recommendations

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recommending that Defendant’s motion to dismiss be granted. (ECF No. 32.) Plaintiff filed

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objections on December 17, 2018, and Defendant filed a response on December 28, 2018.
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On April 4, 2019, the Findings and Recommendations were adopted in full, and Defendant’s

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motion to dismiss the California Bane Act claim for failure to comply with the California Government

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Claims Act was granted. Defendant was directed to file an answer to the complaint within twenty

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days. (ECF No. 40.)

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As previously stated, on January 11, 2019, Plaintiff filed a request for judicia notice.

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Defendant filed an opposition on January 24, 2019, and Plaintiff filed a reply on February 25, 2019.

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On March 4, 2019, Plaintiff filed a motion for reconsideration, along with a subsequent reply to

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Defendant’s opposition. On March 22, 2019, Defendant filed an opposition to Plaintiff’s motion for

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reconsideration.

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II.

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DISCUSSION

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A.

Request for Judicial Notice

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In his motion, Plaintiff seeks judicial notice of unidentified documents, to amend his third

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amended complaint, and to strike Defendant’s answer. Plaintiff contends that he submitted his

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Government Claim to the Board on August 28, 2018, and it was properly considered on October 13,

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2018, and the Board’s denial on October 18, 2012 is void. Plaintiff also requests to amend the

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complaint, and that the Court should strike Defendant’s answer.

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1.

Request for Judicial Notice

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Federal Rule of Evidence 201 permits the Court to take judicial notice at any time. A

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judicially noticed fact must be one not subject to reasonable dispute in that it is either: (1) generally

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known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready

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determination by resort to sources who accuracy reasonably cannot be questioned. Fed. R. Evid.

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201(b). Courts may take judicial notice of facts related to the case before it. Amphibious Partners,

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LLC v. Redman, 534 F.3d 1357, 1361-1362 (10th Cir. 2008) (district court was entitled to take

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judicial notice of its memorandum of order and judgment from previous case involving same parties).

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This Court may judicially notice the records and filing of other court proceedings. Tellabs, Inc. v.

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Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Bennett v. Medtronic, Inc., 285 F.3d 801, 802

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n.2 (9th Cir. 2002). This includes documents filed in state courts. Harris v. Cnty. of Orange, 682 F.3d

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1126, 1132 (9th Cir. 2012). Plaintiff does not identify or attach any documents of which to take

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judicial notice. However, to the extent Plaintiff seeks judicial notice of California Government Claim

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Number 17010061 and the associated documents, the Court already took judicial notice of these

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documents at Defendant’s request. (ECF No. 32 at 3-4.) Accordingly, Plaintiff’s request for judicial

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notice shall be denied.

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2.

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It appears that Plaintiff seeks to amend his complaint to add additional claim to re-allege

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Request to Amend

compliance with the California Government Claims Act.

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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)(2).

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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 presumption 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). Further,

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undue delay alone is insufficient to justify denial of a motion to amend. Bowles v. Reade, 198 F.3d

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752, 758 (9th Cir. 1999).

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Defendant opposes Plaintiff’s request to amend the complaint because he has already expended

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resources preparing and filing a motion to dismiss addressing the Bane Act claim and failure to

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comply with the California Government Claims Act. Defendant submits he incurred great litigation

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costs in gathering the necessary supporting documents and preparing the motion to dismiss.

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Therefore, Defendant would be prejudiced at this point if amendment were granted. In addition,

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amendment appears futile because the Bane Act claim has been dismissed from the action.

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Furthermore, Plaintiff failed to submit a copy of his proposed fourth amended complaint. See Local

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Rule 137(c). Accordingly, Plaintiff’s motion to amend the complaint shall be denied.
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Request to Strike Defendant’s Answer

Lastly, Plaintiff requests that the Court strike Defendant’s answer. However, Defendant has

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not yet filed an answer to the complaint as a motion to dismiss was filed as the initial response.

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Accordingly, Plaintiff’s request is improper and shall be denied.

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B.

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On March 4, 2019, Plaintiff filed a motion for reconsideration under Federal Rule of Civil

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Request for Reconsideration

Procedure 60(b) included with a separate motion challenging Defendant’s prior motion to dismiss.
Plaintiff’s motion for reconsideration shall be denied, without prejudice. Plaintiff’s motion for

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reconsideration was filed prematurely. A motion under Rule 60(b) cannot be filed until after a final

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judgment or order has been entered. Fed. R. Civ. P. 60(c)(1). At the time Plaintiff filed the instant

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motion, the Court had not yet entered a final order on the motion to dismiss. Now that Defendant’s

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motion to dismiss has been granted by way of final order on April 4, 2019, Plaintiff may re-file a

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motion for reconsideration if he wishes to do so. Accordingly, Plaintiff’s motion for reconsideration

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filed on March 4, 2019, shall be denied, without prejudice.

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III.

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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 request for judicial notice is DENIED; and

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Plaintiff’ request for reconsideration is DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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April 5, 2019
UNITED STATES MAGISTRATE JUDGE

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