Oliver v. Shelton et al

Filing 55

ORDER signed by Magistrate Judge Dennis M. Cota on 2/28/2020 DENYING 45 Request for leave to amend. (Coll, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARON MICHAEL OLIVER,

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No. 2:18-CV-1809-KJM-DMC

Plaintiff,
v.

ORDER

DUANE SHELTON, et al.,
Defendants.

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Plaintiff, who is proceeding pro se, brings this civil action. Pending before the
Court is plaintiff’s request for leave to amend. See ECF No. 45.

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The Federal Rules of Civil Procedure provide that a party may amend his or her

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pleading once as a matter of course within 21 days of serving the pleading or, if the pleading is

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one to which a responsive pleading is required, within 21 days after service of the responsive

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pleading, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service of a motion under Rule

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12(b), (e), or (f) of the rules, whichever time is earlier, see Fed. R. Civ. P. 15(a)(1)(B). In all

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other situations, a party’s pleadings may only be amended upon leave of court or stipulation of all

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the parties. See Fed. R. Civ. P. 15(a)(2). Where leave of court to amend is required and sought,

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the court considers the following factors: (1) whether there is a reasonable relationship between

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the original and amended pleadings; (2) whether the grant of leave to amend is in the interest of

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judicial economy and will promote the speedy resolution of the entire controversy; (3) whether
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there was a delay in seeking leave to amend; (4) whether the grant of leave to amend would delay

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a trial on the merits of the original claim; and (5) whether the opposing party will be prejudiced

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by amendment. See Jackson v. Bank of Hawai’i, 902 F.2d 1385, 1387 (9th Cir. 1990). Leave to

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amend should be denied where the proposed amendment is frivolous. See DCD Programs, Ltd. v.

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Leighton, 833 F.2d 183, 186 (9th Cir. 1987).

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This case currently proceeds against defendants Mel, Shelton, and Hatley on

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plaintiff’s second amended complaint filed on June 17, 2019. See ECF No. 36. Defendant Mel

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has filed an answer. See ECF No. 37. Defendants Shelton and Hatley have filed a motion to

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dismiss, which to date is unopposed. See ECF No. 43. Because the docket reflects that plaintiff

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has already filed one amendment as of right, leave of court is required to amend again. In his

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current request for leave to amend, plaintiff has only provided the Court with what appears to be a

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proposed amended complaint but no briefing in support of leave to amend. Specifically, plaintiff

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has not made any showing relative to the factors outlined above. For this reason, plaintiff’s

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request for leave to amend is denied.

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Defendants’ motion to dismiss will be addressed separately.

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IT IS SO ORDERED.

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Dated: February 28, 2020
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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