Amador v. City Of San Jose et al

Filing 38

ORDER by Magistrate Judge Howard R. Lloyd granting in part and denying in part 31 Motion for Leave to Amend the Complaint. Defendants Moody and Moore dismissed with prejudice. Motion denied as to City of San Jose. All Doe defendants are dismissed. Motion granted as to Officer Flores. Once Flores appears, he may have 30 days in which to file any dispositive motion. (hrllc2, COURT STAFF) (Filed on 3/11/2013)

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*E-FILED: March 11, 2013*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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No. C11-02374 HRL

HENRY STEVEN AMADOR,

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR LEAVE TO AMEND THE
COMPLAINT

Plaintiff,
v.
CITY OF SAN JOSE; CHIEF OF POLICE
CHRIS MOORE; SERGEANT DAVID
MOODY; and DOES 1 through 50, inclusive,

[Re: Docket No. 31]

Defendants.
/

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This is a case of mistaken identity as to plaintiff Henry Steven Amador, who happened

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to be in the wrong place at the wrong time. Briefly stated, he got caught up in the middle of a

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drug bust and was mistaken by San Jose police officers as one of the suspects who attempted to

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flee the scene. He filed the instant civil rights lawsuit, alleging claims under 42 U.S.C. § 1983

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and several state law claims against the City of San Jose (City), then-Chief of Police Chris

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Moore, and Sergeant David Moody.

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Shortly before defendants moved for summary judgment, the parties attempted to

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finalize a stipulation in which Officer Miguel Flores would be added as a defendant; defendants

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Moore and Moody would be dismissed; and one or more of plaintiff’s claims would be dropped.

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These negotiations continued even after defendants’ summary judgment motion was filed; and,

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apparently believing that the stipulation was a done deal, Amador prepared his summary

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judgment opposition papers, focusing exclusively on the conduct of Flores, who was not—and

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still is not—in the case.

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Suffice to say, the parties did not manage to reach a final agreement on all terms of a

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stipulation that would have brought Flores into the case. Defendants proceeded with their

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summary judgment motion, and about a week after that motion was heard, plaintiff filed the

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instant motion for leave to amend the complaint. He wants to (1) add Flores; (2) dismiss

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Moody and Moore; and (3) drop claim 2 (conspiracy) and claim 4 (failure to intercede). These

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proposed amendments mirror plaintiff’s proposals re the failed stipulation. Defendants do not

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object to the dismissal of Moody and Moore. But they otherwise oppose the motion on the
grounds that plaintiff unduly delayed in seeking the amendment and amendment would be futile

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For the Northern District of California

United States District Court

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anyway. The matter is deemed suitable for determination without oral argument. CIV. L.R. 7-

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1(b). For the reasons stated below, the court grants the motion in part and denies it in part.

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Rule 15(a) of the Federal Rules of Civil Procedure governs motions for leave to amend

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and provides that “[t]he court should freely give leave when justice so requires.” FED. R. CIV.

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P.15(a)(2). The decision whether to grant leave to amend under Rule 15(a) is committed to the

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sound discretion of the trial court. See Waits v. Weller, 653 F.2d 1288, 1290 (9th Cir. 1981).

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Leave need not be granted, however, where the amendment would cause the opposing party

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undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue delay.

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Foman v. Davis, 371 U.S. 178, 182 (1962). “Absent prejudice, or a strong showing of any of

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the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting

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leave to amend.” Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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Plaintiff waited far too long to seek amendment. Flores was deposed in December 2011.

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This court is told that in early 2012, the parties discussed who should be added or dropped as

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defendants. And, plaintiff’s retained expert David Paul prepared a report in June 2012 opining

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about Flores’ conduct. Amador says that it was not until Paul was deposed on August 6, 2012

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that “some of these issues” (i.e., which parties and claims should be added or dropped) were

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“clarified.” (Downing Decl. ¶ 4). Plaintiff does not, however, say what “clarification” Paul’s

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testimony provided. And, by the time Flores was deposed in December 2011—and certainly by
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the time Paul provided his report six months later—plaintiff reasonably should have known

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whether Flores should be added to the case. Plaintiff’s counsel says that decision-making in

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this case was delayed because Amador is actually the client of his law partner, Luan Le, who

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became seriously ill during the litigation. Prudent counsel should have made appropriate plans

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to have another attorney take the lead in making decisions in the case if Le was unable to do so.

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In sum, the court finds no justification for plaintiff’s decision to wait for the better part of a year

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before seeking to amend his complaint.

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Nevertheless, undue delay alone “is insufficient to justify denying a motion to amend.”

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Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999). Flores has already been deposed, and no
one contends that adding him will require re-opening discovery. True, on the basis of the

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For the Northern District of California

United States District Court

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known evidence, plaintiff’s claims appear very weak. Nevertheless, plaintiff’s motion to amend

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is granted as to Flores. Once Flores has appeared, he may have 30 days to file any dispositive

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motion.

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Defendants Moore and Moody are hereby dismissed with prejudice.

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Inasmuch as Amador seeks to include the City as a named defendant in his amended

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complaint, his motion for leave to amend is denied. For reasons stated in this court’s order re

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defendants’ summary judgment motion,1 the court finds that amendment would be futile as to

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the City.

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Finally, all Doe defendants are dismissed and plaintiff will not be permitted to include

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any Doe defendants in his amended complaint. To the extent there are any other persons or

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entities plaintiff believes should be in this case, he certainly should have learned about them

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long before now.

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SO ORDERED.

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Dated: March 11, 2013

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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE

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The court’s order on defendants’ summary judgment motion will be filed
concurrently with this one.
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5:11-cv-02374-HRL Notice has been electronically mailed to:

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Carlo L Miranda

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George G. Benetatos

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John Gregory Downing

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Luan Thien Le

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Richard D. North

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Shannon Smyth-Mendoza [e-mail],
[e-mail]

[e-mail]
[e-mail]
[e-mail]

[e-mail]
[e-mail], [e-mail]

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For the Northern District of California

United States District Court

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