Gipbsin v. Kernan, et al

Filing 268

ORDER signed by District Judge Kimberly J. Mueller on 04/22/19 DENYING 253 Motion for Reconsideration and Request for leave to amend. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CLARENCE A. GIPBSIN,

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Plaintiff,

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v.

No. 2:12-cv-0556 KJM DB P

ORDER

SCOTT KERNAN, et al.,

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Defendants.

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On January 29, 2019, this court adopted the magistrate judge’s findings and

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recommendations and dismissed defendant Linda Neal from this action without prejudice under

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Rule 4(m). ECF No. 250. Plaintiff has filed a Motion for Reconsideration, requesting the court

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reconsider its order on the basis that plaintiff has located Linda Larsen, and plaintiff “seek[s]

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service on Linda Larsen.” Mot., ECF No. 253, at 1. In the same motion, plaintiff requests leave

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to amend his complaint to add Linda Larsen, implying he mistakenly confused the original,

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dismissed defendant, Linda Neal, with Linda Larsen. Id. at 1. Defendants opposed the motion.

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ECF No. 259.

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To the extent plaintiff is requesting the court reconsider its dismissal of defendant

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Neal, the motion for reconsideration is DENIED, as plaintiff does not present any new facts or

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arguments that were not considered in the previous order. See L.R. 230(j)(3) (party seeking

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reconsideration must: “set[ ] forth the material facts and circumstances surrounding [the] motion
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. . . including: what new or different facts or circumstances are claimed to exist which did not

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exist or were not shown upon such prior motion, or what other grounds exist for the motion.”

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Plaintiff’s request to amend his complaint to add a new defendant is also DENIED.

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As defendants point out, plaintiff initiated this lawsuit on March 1, 2012, Compl., ECF No. 1, and

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has already amended his complaint twice. See Opp’n, ECF No. 259, at 2 (citing ECF No. 164). In

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the roughly seven years that this lawsuit has been pending, plaintiff has had ample time to

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discover the identity of the proposed new defendant, and he provides no explanation why he

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could not have substituted the correct defendant earlier in the case. Defendants also argue

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allowing plaintiff to add Larsen as a defendant this late in the litigation would result in undue

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delays in the litigation, including the need for Larsen to respond to the complaint and potentially

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the need to reopen discovery and extend the dispositive motion deadline. See AmerisourceBergen

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Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006) (“[A] district court need not grant

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leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad

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faith; (3) produces an undue delay in litigation; or (4) is futile.”).

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For the foregoing reasons, plaintiff’s motion for reconsideration and request for
leave to amend therein is DENIED.
IT IS SO ORDERED.
DATED: April 22, 2019.

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UNITED STATES DISTRICT JUDGE

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