Bel Montez, et al., v. City of Stockton et al

Filing 11

ORDER signed by Judge Morrison C. England, Jr. on 10/14/11 ORDERING that plfs' 9 Motion to Amend the Complaint is GRANTED as unopposed. Plaintiffs are directed to file and serve their proposed First Amended Complaint w/i 5 days. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISABEL BELMONTEZ, et al.,

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No. 2:10-cv-03149-MCE-EFB

Plaintiffs,
v.

MEMORANDUM AND ORDER

CITY OF STOCKTON, et al.,

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Defendants.

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----oo0oo----

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Presently before the Court is Plaintiffs’ unopposed Motion

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to Amend Complaint.1

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on November 19, 2010, alleging various causes of action arising

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out of the death of Decedent Joseph Garcia while in the custody

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of the City of Stockton Police Department.

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leave to file a First Amended Complaint (“FAC”) to add much more

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detailed factual allegations and to modify their causes of

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action.

Plaintiffs originally filed their Complaint

Plaintiffs now seek

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According to Plaintiffs’ moving papers, “Defendants
counsel does not oppose Plaintiffs filing the attached proposed
First Amended Complaint.” Motion, 5:1-3. Consistent with this
assertion, Defendants have filed no opposition.
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Typically, leave to amend should be “freely given” where

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there is no “undue delay, bad faith or dilatory motive on the

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part of the movant,...undue prejudice to the opposing party by

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virtue of allowance of the amendment, [or] futility of the

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amendment....”

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th

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Cir. 2003) (listing the Foman factors as those to be considered

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when deciding whether to grant leave to amend).

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factors merit equal weight.

Foman v. Davis, 371 U.S. 178, 182 (1962);

Not all of these

Rather, “the consideration of

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prejudice to the opposing party...carries the greatest weight.”

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Eminence Capital, 316 F.3d at 1052 (citing DCD Programs, Ltd. v.

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Leighton, 833 F.2d 183, 185 (9th Cir. 1987)).

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leave to amend is proper only if it is clear that “the complaint

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could not be saved by any amendment.”

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Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (internal

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citations and quotations omitted).

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Court’s own Pretrial Scheduling Order (“PTSO”), amendments to the

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pleadings will be permitted upon a showing of good cause.

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1:23-25.

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Dismissal without

Intri-Plex Techs. v. Crest

In addition, pursuant to the

PTSO,

In this case, Plaintiffs explain that Defendant City of

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Stockton “refus[ed] to release information concerning this case

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to Plaintiff’s counsel prior to the filing of the instant

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lawsuit.”

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original Complaint, after which the parties engaged in discovery.

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Through this discovery, Plaintiffs uncovered the additional facts

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underlying their proposed FAC.

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///

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///

Motion, 4:15-17.

Plaintiffs consequently filed their

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No prejudice to the parties will result from amendment as ample

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time remains prior to the cutoff of fact discovery, and this case

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is not scheduled for trial until 2013.

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Accordingly, given Defendants’ lack of opposition to

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Plaintiffs’ Motion, and good cause appearing therefor,

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Plaintiffs’ Motion for Leave to Amend the Complaint (ECF No. 9)

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is GRANTED.2

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proposed First Amended Complaint within five (5) days of the date

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this Order is electronically filed.

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Plaintiffs are directed to file and serve their

IT IS SO ORDERED.
Dated: October 14, 2011

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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Because oral argument will not be of material assistance,
the Court orders this matter submitted on the briefing. E.D.
Cal. Local Rule 230(g). The hearing currently set for 2:00 p.m.
on Thursday, October 20, 2011, is hereby vacated.
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