(PS) Chipman v. Nelson et al

Filing 179

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/18/2013 ORDERING Plaintiff's #166 motion to amend her complaint, is GRANTED; within 30 days from the date of this order, plaintiff shall file a third amended complaint; Defendants' motions to dismiss and to strike #156 , #157 , #158 , #161 , #162 , #163 , #178 are DENIED as MOOT; defendants shall file a response to 3rd amended complaint within the time prescribed in the FRCP; Status Conference CONTINUED to 11/20/2013 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan; Status Reports due by 11/6/2013. (Reader, L)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

RICKIE L. CHIPMAN,

11

Plaintiff,

12
13

No. 2:11-cv-2770-TLN-EFB PS

vs.
MARCIA F. NELSON, M.D., et. al.,

ORDER

Defendants.

14

/
15
16

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

17

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

18

noticed for hearing on July 10, 2013 are numerous motions to dismiss and to strike plaintiff’s

19

second amended complaint filed by various defendants.1 Dckt. Nos. 156, 157, 158, 161, 162,

20

163, 178.

21

On June 4, 2013, plaintiff sent a letter to the court, which the undersigned construes as a

22

motion to amend her second amended complaint. Dckt. No. 166. In that letter, plaintiff

23

specifically requests the ability to amend her second amended complaint, stating that she

24

“neglected to declare on the first page of [her] complaint the Civil violations that were

25
1

26

Three of the defendants also filed an answer to plaintiff’s second amended complaint.
Dckt. No. 160.
1

1

committed by defendants,” and that “[i]n an effort to be brief, [she] did not include numerous

2

facts, as [she] had in [her] original complaint and [her] 1st Amended Complaint, showing exactly

3

when and how defendants caused harm” to plaintiff’s mother, plaintiff, and plaintiff’s family.

4

Id. She adds that “this is a complicated case” and that she believes that “if given the chance,

5

[she] can now write [her] complaint correctly combining written law with all the facts

6

simultaneously.” Id. Plaintiff further contends that on June 20, 2013, the standing issue argued

7

by various defendants “will be remedied in Butte County Probate Court . . . where [plaintiff] will

8

be named Executor of both [her] parents’ wills.” Id.

9

Plaintiff has previously amended her complaint and, accordingly, she is not entitled to

10

amend her complaint “as a matter of course” under Federal Rule of Civil Procedure 15(a)(1).

11

Therefore, the court must look to Rule 15(a)(2), which provides that “[i]n all other cases, a party

12

may amend its pleading only with the opposing party’s written consent or the court’s leave. The

13

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

14

freely granting leave to amend should be applied with “extreme liberality.” DCD Programs, Ltd.

15

v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). When determining whether to grant leave to

16

amend under Rule 15(a), a court should consider the following factors: (1) undue delay; (2) bad

17

faith; (3) futility of amendment; and (4) prejudice to the opposing party. Foman v. Davis, 371

18

U.S. 178, 182 (1962). According to the Ninth Circuit, “the crucial factor is the resulting

19

prejudice to the opposing party,” and the burden of showing that prejudice is on the party

20

opposing amendment. Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973); Eminence

21

Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); DCD Programs, 833 F.2d at

22

187. Granting or denying leave to amend rests in the sound discretion of the trial court, and will

23

be reversed only for abuse of discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th

24

Cir. 1996).

25

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

26

requesting leave to file a third amended complaint or that her request was filed in bad faith.
2

1

Rather, the request for leave to file a third amended complaint was filed in response to

2

defendants’ motions to dismiss and to strike. Moreover, plaintiff’s second amended complaint

3

was filed after this court issued 28-page findings and recommendations, Dckt. No. 151, and

4

plaintiff acknowledges that she thought she was to address specific legal issues noted in the

5

findings and recommendations and she did not realize she needed to include all of the relevant

6

facts. Dckt. No. 166. Therefore, it does not appear that her failure to include all of the relevant

7

facts in her second amended complaint was in bad faith. Further, the court cannot say at this

8

time that amendment would be futile since it is unclear what additional facts plaintiff intends to

9

include in a third amended complaint. Additionally, although defendants have already filed

10

multiple motions to dismiss and to strike the second amended complaint, if plaintiff’s third

11

amended complaint suffers from the same failures that defendants asserted as to the second

12

amended complaint, defendants are free to move to dismiss the third amended complaint on

13

similar grounds. Therefore, defendants have completed little or no work that would be disturbed

14

by granting plaintiff leave to file a third amended complaint. The burden of showing prejudice is

15

upon the party opposing the amendment and defendants cannot carry this burden. Accordingly,

16

plaintiff will be granted an opportunity to file a third amended complaint. See Duong-Tran v.

17

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

18

As a result, the pending motions to dismiss and to strike, Dckt. Nos. 156, 157, 158, 161,

19

162, 163, and 178, will be denied as moot. Plaintiff’s third amended complaint will supersede

20

the second amended complaint which those motions seeks to dismiss, rendering the second

21

amended complaint of no legal effect and the motions to dismiss moot. See Ramirez v. Silgan

22

Containers, 2007 WL 1241829, at *6 (Apr. 26, 2007).

23

Accordingly, IT IS HEREBY ORDERED that:

24

1. Plaintiff’s June 4, 2013 motion to amend her complaint, Dckt. No. 166, is granted.

25

2. Within thirty days from the date of this order, plaintiff shall file a third amended

26

complaint.
3

1
2
3
4
5
6
7

3. Defendants’ motions to dismiss and to strike, Dckt. Nos. 156, 157, 158, 161, 162, 163,
and 178, are denied as moot and the July 10, 2013 hearing thereon is vacated.
4. Defendants shall file a response to plaintiff’s third amended complaint within the time
prescribed in the Federal Rules of Civil Procedure.
5. The status (pretrial scheduling) conference currently set for August 28, 2013 is
continued to November 20, 2013 at 10:00 a.m. in Courtroom No. 8.
6. On or before November 6, 2013, the parties shall file status reports, as provided in the

8

October 20, 2011 order.

9

SO ORDERED.

10

Dated: June 18, 2013.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4