Adams v. Easley et al

Filing 11

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/27/2011. Plaintiff's 9 First Amended Complaint is DEEMED the operative Complaint for this action. Defendants' initial 6 7 Motions to Dismiss are DENIED as MOOT and their Hearings are VACATED. Defendants' recent 10 Motion to Dismiss First Amended Complaint is NOT DENIED as MOOT and will remain on 8/3/2011 calendar. (Marciel, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TYRONE L. ADAMS,

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Plaintiff,

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No. CIV S-11-0913 JAM EFB PS

vs.

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CHARLES L. EASLEY, et al.,

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Defendants.
_____________________________/

ORDER

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This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to

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Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On April 5,

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2011, plaintiff filed a complaint against numerous defendants alleging, among other things, that

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several owners of a residence plaintiff has leased violated the Fair Housing Act, 42 U.S.C.

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§§ 3601 et seq., and plaintiff’s civil rights by failing to maintain the property and thereby

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“constructively evicting” plaintiff from the property because of his race. See generally Compl.,

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Dckt. No. 1. The complaint also alleges that the Sutter County District Attorney’s Office and

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individually named district attorneys have violated plaintiff’s Fourteenth Amendment rights to

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due process and equal protection, and plaintiff’s rights under California’s Victim’s Bill of

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Rights, by failing to prosecute all of the owners of the leased premises and for allowing the two

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owners they have prosecuted, Charles Easley and Andrew Paulson, to accept a plea agreement.

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Id.
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On May 31, 2011, several of the defendants filed a motion to dismiss plaintiff’s initial

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complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), or in the alternative,

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for a more definite statement pursuant to Rule 12(e). Dckt. No. 6. On June 1, 2011, another

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defendant filed a motion to dismiss plaintiff’s complaint for lack of jurisdiction, and on June 6,

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2011, several other defendants joined in that motion. Dckt. Nos. 7, 8.

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Then, on June 6, 2011, plaintiff filed an amended complaint. Rule 15(a)(1) provides that

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“[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it,

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or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a

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responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever

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is earlier.”1 Here, plaintiff’s amended complaint was filed within 21 days of the date defendants

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served their motions to dismiss. However, because it is unclear when plaintiff’s initial complaint

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was served on defendants, it is unclear whether the amended complaint was filed within 21 days

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of the date he served the initial complaint. Therefore, the court cannot determine, based on the

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record currently before it, whether plaintiff was entitled to amend his complaint “as a matter of

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course.”

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Nonetheless, even if plaintiff was not entitled to amend his complaint as a matter of

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course, Rule 15(a)(2) provides that “[i]n all other cases, a party may amend its pleading only

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with the opposing party’s written consent or the court’s leave. The court should freely give

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leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The policy of freely granting leave to

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amend should be applied with “extreme liberality.” DCD Programs, Ltd. v. Leighton, 833 F.2d

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183, 186 (9th Cir. 1987). When determining whether to grant leave to amend under Rule 15(a),

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a court should consider the following factors: (1) undue delay; (2) bad faith; (3) futility of

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amendment; and (4) prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962).

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Prior to December 1, 2009, Rule 15(a)(1) provided that “[a] party may amend its
pleading once as a matter of course: (A) before being served with a responsive pleading; or (B)
within 20 days after serving the pleading if a responsive pleading is not allowed and the action is
not yet on the trial calendar.”
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According to the Ninth Circuit, “the crucial factor is the resulting prejudice to the opposing

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party,” and the burden of showing that prejudice is on the party opposing amendment. Howey v.

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United States, 481 F.2d 1187, 1190 (9th Cir. 1973); Eminence Capital, LLC v. Aspeon, Inc., 316

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F.3d 1048, 1052 (9th Cir. 2003); DCD Programs, 833 F.2d at 187. Granting or denying leave to

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amend rests in the sound discretion of the trial court, and will be reversed only for abuse of

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discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996).

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Here, there is no indication that plaintiff, who is appearing pro se, unduly delayed in

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filing the amended complaint or that the amended complaint was filed in bad faith. In fact, the

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amended complaint was filed shortly after defendants filed their motions to dismiss. Further, the

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court cannot say at this time that amendment would be futile. Additionally, although several of

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the defendants have already filed motions to dismiss the original complaint, if plaintiff’s

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amended complaint suffers from the same failures that defendants contend the original complaint

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does, defendants can move to dismiss the amended complaint on similar grounds. In fact, some

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of the defendants already filed a revised motion to dismiss the amended complaint. Dckt. No.

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10. Therefore, defendants have completed little or no work that would be disturbed by granting

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plaintiff leave to file his amended complaint. The burden of showing prejudice is upon the party

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opposing the amendment and defendants cannot carry this burden. Accordingly, plaintiff’s

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amended complaint, Dckt. No. 9, will be deemed the operative complaint. See Duong-Tran v.

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Kaiser Found. Health Plan of the N.W., 2008 WL 1909221, at *4-5 (D. Or. Apr. 28, 2008).

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As a result, defendants’ initial motions to dismiss, Dckt. Nos. 6 and 7, will be denied as

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moot. Plaintiff’s amended complaint supersedes the earlier complaint which those motions seek

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to dismiss, rendering the earlier complaint of no legal effect and the motions to dismiss moot.

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See Ramirez v. Silgan Containers, 2007 WL 1241829, at *6 (Apr. 26, 2007).

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Accordingly, it is HEREBY ORDERED that:

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1. Plaintiff’s first amended complaint, Dckt. No. 9, is deemed the operative complaint in

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this action;
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2. Defendants’ initial motions to dismiss, Dckt. No. 6 and 7, are denied as moot;

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3. The July 6, 2011 and July 13, 2011 hearings on those motions are vacated; and

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4. Defendants’ recent motion to dismiss plaintiff’s first amended complaint, Dckt. No.

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10, is not denied as moot and will remain on calendar on August 3, 2011.

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DATED: June 27, 2011.

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