Rabieh v. Paragon Systems inc.

Filing 71

ORDER granting 66 Motion for Leave to File Second Amended Complaint. The hearing scheduled for 4/12/2018 is VACATED. Plaintiff shall file the proposed second amended complaint as a separate docket entry on ECF forthwith. Signed by Judge Edward J. Davila on 4/9/2018. (ejdlc1S, COURT STAFF) (Filed on 4/9/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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RAAD ZUHAIR RABIEH,

Case No. 5:16-cv-04256-EJD

Plaintiff,
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ORDER GRANTING MOTION FOR
LEAVE TO FILE SECOND AMENDED
COMPLAINT

v.
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United States District Court
Northern District of California

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PARAGON SYSTEMS INC., dba
PARASYS, INC., DOES 1-20,

Re: Dkt. No. 66

Defendants.

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Plaintiff Raad Zuhair Rabieh (“Plaintiff”) brings this action against Defendant Paragon

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Systems Inc. (“Paragon”) and “DOES 1-20” (collectively, “Defendants”), alleging Constitutional

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violations and various state law claims. Presently before the Court is Plaintiff’s motion for leave

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to file a second amended complaint. Dkt. No. 66. Pursuant to Civil Local Rule 7-1(b), the Court

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finds this matter suitable for decision without oral argument and VACATES the hearing set for

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April 12, 2018. For the reasons discussed below, Plaintiff’s motion is GRANTED.

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Under Federal Rule of Civil Procedure 15(a)(1), a party “may amend its pleading once as a

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matter of course” within 21 days after that pleading is served, or 21 days after service of a

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responsive pleading or motion under Rule 12. “In all other cases, a party may amend its pleading

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only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

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Because Plaintiff has already amended his complaint once as a matter of course, see Dkt. No. 3, he

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cannot file an additionally amended complaint without leave of this Court.

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“Generally, Rule 15 advises the court that ‘leave shall be freely given when justice so

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requires.’ This policy is ‘to be applied with extreme liberality.’” Eminence Capital, LLC v.

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Case No.: 5:16-cv-04256-EJD
ORDER GRANTING MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quoting Owens v. Kaiser Found. Health Plan,

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Inc., 244 F.3d 708, 712 (9th Cir. 2001)). In Foman v. Davis, the Supreme Court enumerated

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several factors which district courts should consider in deciding whether to grant leave to amend:

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In the absence of any apparent or declared reason—such as undue
delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.—the leave
sought should, as the rules require, be “freely given.”

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371 U.S. 178, 82 S. Ct. 227, 9 L. Ed. 2d 222 (1962). Of these factors, “prejudice to the opposing
party . . . carries the greatest weight.” Eminence Capital, 316 F.3d at 1051. “Absent prejudice, or

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a strong showing of any of the remaining Foman factors, there exists a presumption under Rule
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15(a) in favor of granting leave to amend.” Id.

United States District Court
Northern District of California

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Here, Plaintiff’s proposed amendments alter the operative complaint in two ways: (1) they
add the names of “DOE 1,” “DOE 2,” “DOE 3,” and “DOE 4;” and (2) they modify Plaintiffs’

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§ 1983 claims in the first three causes of action to allege Bivens claims in the alternative.
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Compare Dkt. No. 66-1, with Dkt. No. 3. Defendants do not appear to oppose this first category
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of changes, and only challenge the second category on a single basis: legal futility. Opposition
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(“Opp’n”), Dkt. No. 67. On that point, Defendants argue that Plaintiff’s Bivens claims are legally

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futile because private corporations (such as Paragon) and private individuals (such as the Paragon
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employees named in the proposed second amended complaint) cannot be held liable under
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Bivens.1 Opp’n 3-4.

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Defendants’ objection sweeps too broadly. Indeed, as the Ninth Circuit has recognized,
the Supreme Court has yet to “completely foreclose applying Bivens to private actors.” Vega v.

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United States, 881 F.3d 1146, 1153 (9th Cir. 2018) (citing Minneci v. Pollard, 565 U.S. 118, 120,
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132 S. Ct. 617, 181 L. Ed. 2d 606 (2012) (“[W]e concede that we cannot prove a negative or be

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Defendants also argue that Plaintiff’s § 1983 claims are legally futile. Opp’n 4-5. However,
because these claims are already part of the operative complaint, they are not amendments which
the Court must consider in deciding Plaintiff’s motion for leave. If Defendants wish to challenge
the legal sufficiency of these claims, they must do so in a properly noticed motion under Federal
Rule of Civil Procedure 12.
Case No.: 5:16-cv-04256-EJD
ORDER GRANTING MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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totally certain that the features of state tort law relevant here will universally prove to be, or

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remain, as we have described them.”)); see also Rosenberg v. Cornell Corp., No. C 07-4690 PJH,

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2009 WL 5069141, at *7 (N.D. Cal. Dec. 17, 2009) (“Neither the Supreme Court nor the Ninth

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Circuit have answered the question regarding whether Bivens applies to employees of private

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corporations.”). Based on the allegations in the second amended complaint and the information

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available at this stage, the Court cannot conclude that Plaintiff’s Bivens claims are legally futile.

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Accordingly, amendment cannot be denied on this basis.

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Defendants raise no other grounds for denying Plaintiff’s request, and the Court discerns
none. Accordingly, Plaintiff’s motion for leave to file a second amended complaint is
GRANTED. Plaintiff shall file the proposed second amended complaint as a separate docket entry

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United States District Court
Northern District of California

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on ECF forthwith.

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IT IS SO ORDERED.
Dated: April 9, 2018
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:16-cv-04256-EJD
ORDER GRANTING MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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