Ager v. Hedgepath et al

Filing 97

ORDER granting 92 Motion for Leave to File Third Amended Complaint signed by Judge Edward J. Davila on 4/23/13. (ejdlc4S, COURT STAFF) (Filed on 4/23/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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DANIEL AGER, individually and as a Successor )
in Interest to the ESTATE OF ALAN AGER,
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KATHRYN AGER and ELIZABETH AGER, )
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Plaintiffs,
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v.
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ANTHONY HEDGEPATH, et al.,
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Defendants.
)

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Case No.: 5:11-CV-06642-EJD
ORDER GRANTING PLAINTIFFS’
MOTION FOR LEAVE TO FILE
THIRD AMENDED COMPLAINT
AND MODIFYING THE
SCHEDULING ORDER

[Re: Docket No. 92]

Presently before the court is Plaintiffs Daniel Ager, Elizabeth Ager, and Kathryn Ager’s

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(collectively, “Plaintiffs”) Motion for Leave to File Third Amended Complaint. See Dkt. No. 92.

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Defendants Anthony Hedgepath, Belinda Hendrick, and D. Spencer’s (collectively, “Defendants”)

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oppose the motion. See Dkt. No. 93. The court finds this matter suitable for decision without oral

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argument pursuant to Civil Local Rule 7-1(b) and hereby VACATES the hearing currently set for

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April 26, 2013. Having fully reviewed the parties’ briefing, and for the foregoing reasons, the

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court GRANTS Plaintiffs’ Motion.

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I.

BACKGROUND
Plaintiffs filed this lawsuit pursuing claims arising under 42 U.S.C. § 1983 on behalf of

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themselves and their deceased father Dr. Alan Ager. Dkt. No. 1. Plaintiffs’ complaint alleges that

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Defendants violated Plaintiffs’ rights when they failed to take reasonable steps to protect Dr. Ager

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from an obvious risk of attack from his cellmate. Dr. Ager was ultimately strangled to death by
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Case No.: 5:11-CV-06642-EJD
ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE THIRD AMENDED
COMPLAINT AND MODIFYING THE SCHEDULING ORDER

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this cellmate. Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

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Dkt. No. 17. The court granted-in-part and denied-in-part Defendants’ motion to dismiss on

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August 24, 2012 and granted leave to amend the complaint within the next thirty days to correct the

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infirmities the court had identified. Dkt. No. 32.

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Also on August 24, 2012, the court issued its Case Management Order, which included an
order “that the deadline for joinder of any additional parties, or other amendments to the pleadings,

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is October 30, 2012.” Dkt. No. 33. Plaintiffs filed a First Amended Complaint on September 24,

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2012, adding defendants Arlene Solis, Robert Burgh, Benjamin Bloch, D. Garcia, Antonella

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United States District Court
For the Northern District of California

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Aluzri, and J. Martin. Dkt. No. 35. Less than two weeks later, on October 5, 2012, Plaintiffs filed a

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Second Amended Complaint adding Carl Warfield as an additional defendant. Dkt. No. 37. On

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January 31, 2013, the court struck Plaintiffs’ Second Amended Complaint because Plaintiffs had

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not filed the appropriate motion under Federal Rule of Civil Procedure 15 seeking leave to file their

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amended complaint. See Dkt. No. 69. Then, on March 14, 2013, the court granted Plaintiffs’

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Motion to Modify the Scheduling Order Pursuant to Fed. R. Civ. P. 16(b)(4), which, inter alia,

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extended the deadline to file for leave to file an amended complaint from October 30, 2012 to

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March 30, 2013. Dkt. No. 90. On March 28, 2013, Plaintiffs filed the instant motion seeking leave

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to file a Third Amended Complaint, which would add Robert Burgh as a named defendant and

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remove D. Spencer as a named defendant. The court now turns to the substance of that motion.

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II.

Legal Standard
Leave to amend is generally granted with liberality. Fed. R. Civ. P. 15(a)(2) (“The court

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should freely give leave when justice so requires”); Morongo Band of Mission Indians v.

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Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Leave need not be granted, however, where the

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amendment of the complaint would cause the opposing party undue prejudice, is sought in bad

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faith, constitutes an exercise in futility, or creates undue delay. Foman v. Davis, 371 U.S. 178, 182

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(1962); Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994). Not all of the Rule 15

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considerations are created equal; “it is the consideration of prejudice to the opposing party that

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carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
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Case No.: 5:11-CV-06642-EJD
ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE THIRD AMENDED
COMPLAINT AND MODIFYING THE SCHEDULING ORDER

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Cir. 2003). “The party opposing the amendment bears the burden of showing prejudice.” In re

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Fritz Cos. Sec. Litig., 282 F. Supp. 2d 1105, 1109 (N.D. Cal. Aug. 27. 2003) (citing DCD

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Programs Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987)).

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I.

Discussion
The court begins with an examination of prejudice because it is the critical factor in

deciding a motion for leave to amend. Defendants argue that a grant of leave to amend would

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unduly prejudice them by further delaying the proceedings in order to allow the newly added

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defendant, Mr. Burgh, to conduct discovery and file a dispositive motion. The court is not

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United States District Court
For the Northern District of California

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persuaded by this argument. Defendants had notice that Plaintiffs intended to join Mr. Burgh as

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early as September 24, 2012, when Plaintiffs filed their First Amended Complaint adding Mr.

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Burgh as a defendant. Though the court struck Plaintiffs’ amended complaint, it did so not because

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Mr. Burgh was an improper defendant, but only because Plaintiffs had failed to follow the proper

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procedure. Thus Defendants had no basis on which to infer that the court would prohibit Plaintiffs’

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joining Mr. Burgh to this lawsuit through any properly filed motion. Mr. Burgh is represented by

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the Attorney General’s office, which has been involved in this case since the outset and has already

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produced Mr. Burgh for deposition with full knowledge that he was a possible defendant.

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Furthermore, the delay Defendants complain of is of limited duration—Defendants seek only a

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sixty-day extension of the remaining deadlines in order to allow Mr. Burgh to conduct discovery

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and file any motions. Under these circumstances, such delay, without more, is insufficient to

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create prejudice.

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The court also finds that Plaintiffs did not unduly delay in seeking leave to add Mr. Burgh

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as a defendant. As discussed above, Plaintiffs first attempted, albeit improperly, to add Mr. Burgh

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to this lawsuit in September 2012—well within the original deadline for joinder of additional

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parties. Thereafter, Plaintiffs sought and were granted both an order compelling Mr. Burgh’s

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deposition and an extension to the scheduling order to accommodate a delay in discovery caused

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by a settlement conference. Plaintiffs filed the instant motion before the amended deadline set by

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the court. Accordingly, Plaintiffs have acted in a timely manner.
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Case No.: 5:11-CV-06642-EJD
ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE THIRD AMENDED
COMPLAINT AND MODIFYING THE SCHEDULING ORDER

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