O'Neal v. Johnson et al

Filing 69

ORDER signed by Magistrate Judge Kendall J. Newman on 12/11/2015 DENYING plaintiff's 66 Motion for Leave to file Eighth 45 Amended Complaint and VACATING 1/7/2016 hearing date. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SEAN O’NEAL,

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No. 2:14-cv-2374 KJN PS (TEMP)
Plaintiff,

v.

ORDER

AUGUST JOHNSON, et al.,

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Defendants.

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On December 7, 2015, plaintiff filed a motion for leave to amend the eighth amended

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complaint and noticed that motion for hearing before the undersigned on January 7, 2016. (Dkt.

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No. 66.)

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“This court considers the following five factors to assess whether to grant leave to amend:

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‘(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and

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(5) whether plaintiff has previously amended his complaint.’” In re Western States Wholesale

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Natural Gas Antitrust Litigation, 715 F.3d 716, 738 (9th Cir. 2013) (quoting Allen v. City of

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Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990)). The “‘court’s discretion to deny leave to

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amend is particularly broad where plaintiff has previously amended the complaint.’” City of Los

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Angeles v. San Pedro Boat Works, 635 F.3d 440, 454 (9th Cir. 2011) (quoting Ascon Props., Inc.

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v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)). “‘[L]ate amendments to assert new

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theories are not reviewed favorably when the facts and the theory have been known to the party
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seeking amendment since the inception of the cause of action.’” Royal Ins. Co. of America v.

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Southwest Marine, 194 F.3d 1009, 1016-17 (9th Cir. 1999) (quoting Acri v. International Assoc.

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of Machinists & Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir. 1986)).

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Here, the previously assigned Magistrate Judge repeatedly informed plaintiff that no

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further amendment would be permitted in this action. (See Dkt. No. 50 at 2.) Moreover, a review

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of the docket reveals that plaintiff has repeatedly been granted leave to amend, as evidenced by

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the fact that he is proceeding on an eighth amended complaint, which has caused undue delay, as

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evidenced by the fact that plaintiff’s original complaint was filed on September 11, 2012, (Dkt.

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No. 1-1 at 2), and yet this action has not proceeded past the pleading stage. Finally, a review of

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the proposed ninth amended complaint reveals that, at a minimum, the facts alleged therein have

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been known to plaintiff since the inception of this action.

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In this regard, the weight of the undue delay and the number of times plaintiff has

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previously amended his complaint weigh significantly in favor of denying further leave to amend,

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even, assuming arguendo, that there is an absence of bad faith, prejudice to the opposing party

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and that plaintiff’s proposed amendment is not futile.
Accordingly, IT IS ORDERED that plaintiff’s December 7, 2015 motion for leave to

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amend (Dkt. No. 66) is denied and the January 7, 2016 hearing is vacated.1

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Dated: December 11, 2015

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o’neal2374.mta.den.ord.docx

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Plaintiff, of course, may further amend his complaint with the consent of the opposing parties.
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