Cooks v. Contra Costa County

Filing 40

ORDER by Judge Phyllis J. Hamilton granting 33 Motion to Amend/Correct. (pjhlc1S, COURT STAFF) (Filed on 10/14/2020)

Case 4:20-cv-02695-PJH Document 40 Filed 10/14/20 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PETER JAMES COOKS,

v.

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ORDER GRANTING RENEWED
MOTION FOR LEAVE TO AMEND

CONTRA COSTA COUNTY,

Re: Dkt. No. 33

Defendant.

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United States District Court
Northern District of California

Case No. 20-cv-02695-PJH

Plaintiff,

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Before the court is plaintiff Peter Cooks’ renewed motion to file an amended

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complaint. The matter is fully briefed1 and suitable for decision without oral argument.

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Having read the parties’ papers and carefully considered their arguments and the

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relevant legal authority, and good cause appearing, the court hereby rules as follows.
On August 6, 2020, this court granted defendant Contra Costa County’s motion to

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dismiss and dismissed both of plaintiff’s claims with leave to amend. Dkt. 24 at 6. The

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court ordered plaintiff to file an amended complaint with 21 days of the date of the order

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and further ordered plaintiff’s counsel to file proof of admission to practice within the

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same time period. Id. Plaintiff missed the filing deadline by one day and filed a motion

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for leave to amend, (Dkt. 27), which the court denied without prejudice, (Dkt. 29). Plaintiff

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now brings a renewed motion to file an amended complaint.
Federal Rule of Civil Procedure 15(a)(2) requires that a plaintiff obtain either

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consent of the defendant or leave of court to amend his complaint, but “leave shall be

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Plaintiff declined to file a reply brief within the timeframe provided for by the Civil Local
Rules.

Case 4:20-cv-02695-PJH Document 40 Filed 10/14/20 Page 2 of 3

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freely given when justice so requires.” Fed. R. Civ. P. 15(a); see, e.g., Chodos v. W.

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Pub. Co., 292 F.3d 992, 1003 (9th Cir. 2002). This policy is “to be applied with extreme

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liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003).

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The “party opposing amendment ‘bears the burden of showing prejudice.’” Id. at 1052

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(quoting DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987)).
Leave to amend is thus ordinarily granted unless the amendment is futile, would

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cause undue prejudice to the defendants, or is sought by plaintiffs in bad faith or with a

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dilatory motive. Foman v. Davis, 371 U.S. 178, 182 (1962); Smith v. Pac. Props. & Dev.

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Corp., 358 F.3d 1097, 1101 (9th Cir. 2004). While the court should consider all those

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factors, “the crucial factor is the resulting prejudice to the opposing party.” Howey v.

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United States District Court
Northern District of California

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United States, 481 F.2d 1187, 1190 (9th Cir. 1973).

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As an initial matter, the court denied plaintiff’s previous motion for leave to amend

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because plaintiff’s counsel repeatedly failed to heed the court’s admonition to

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demonstrate admission to practice before this court. Dkt. 29 at 1–2. Plaintiff’s counsel

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has now met the requirements to appear pro hac vice in this action. Dkt. 31. The court

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also denied the motion because plaintiff added a cause of action under the Rehabilitation

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Act without permission of defendant or the court. Dkt. 29 at 2. In his renewed motion,

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plaintiff addresses his Rehabilitation Act claim and argues that he meets the

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requirements for Rule 15. Dkt. 33 at 1–2.

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Defendant opposes the motion arguing that amendment is futile and urges the

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court to apply the same test as Rule 12(b)(6). Dkt. 37 at 1–2. Absent from defendant’s

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opposition is any contention that it will suffer undue prejudice, that plaintiff’s motion is in

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bad faith, or is otherwise dilatory. As a general rule, this court normally does not rule on

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the futility of an amendment at the motion to amend stage unless the proposed

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amendment is clearly and unambiguously futile. See Overpeck v. FedEx Corp., 2020 WL

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2542030, at *4 (N.D. Cal. May 19, 2020). “In general, the futility of amendment is better

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tested in a motion to dismiss for failure to state a claim or a summary judgment motion.”

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Bd. of Trs. of the Auto. Indus. Welfare Fund v. Groth Oldsmobile/Chevrolet, Inc., 2010
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Case 4:20-cv-02695-PJH Document 40 Filed 10/14/20 Page 3 of 3

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WL 760452, at *3 (N.D. Cal. Mar. 4, 2010). In this case, the court cannot say that

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amendment is clearly and unambiguously futile. Defendant may, of course, reassert its

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arguments in a motion to dismiss or motion for summary judgment.

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In sum, “[t]he standard for granting leave to amend is generous.” United States v.

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Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police

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Dep’t, 901 F.2d 696, 701 (9th Cir. 1990)). Defendant has not met its burden to deny

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leave to amend. Accordingly, plaintiff’s renewed motion for leave to amend is

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GRANTED. Plaintiff shall file his proposed amended complaint, (Dkt. 27-1), within seven

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days of the date this order is filed.

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: October 14, 2020
/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge

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