Daughtery v. Wilson et al

Filing 126

ORDER: The Motion for Leave to Amend is granted. The "alternate proposed Second Amended Complaint," filed as Docket number 125, is the operative complaint in this action. Signed by Judge William Q. Hayes on 10/26/2009. (All non-registered users served via U.S. Mail Service.) (mdc) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 HAYES, Judge: 17 19 I. 20 The matter before the Court is the Motion for Leave to File a Second Amended 18 Complaint, filed by Plaintiff, a state prisoner proceeding pro se. (Doc. # 119). Background On August 18, 2009, the Court issued an Order adopting the report and recommendation WILLIAM JOHN DAUGHTERY, vs. DENNIS WILSON, et al., Plaintiff, CASE NO. 08cv408-WQH-BLM ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Defendants.

21 of the Magistrate Judge, granting the motion for summary judgment filed by all Defendants, 22 and stating: "No later than sixty (60) days from the date of this Order, Plaintiff may file a 23 `Motion for Leave to File a Second Amended Complaint,' alleging a claim against the 24 individual Defendant(s) related to the alleged `failure to provide medical assistance.'" (Doc. 25 # 118 at 8). 26 On October 8, 2009, Plaintiff filed the Motion for Leave to File a Second Amended 27 Complaint. (Doc. # 119). Plaintiff also submitted a "proposed Second Amended Complaint," 28 which contains a single Count for violation of "Right to Medical Care" (Doc. # 124), and an
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1 "alternate proposed Second Amended Complaint," which contains two Counts--one for 2 violation of "Right to Medical Care" (which is identical to the single Count in the "proposed 3 Second Amended Complaint"), and one for "Perjury, False Police Reports, Fabricating 4 Evidence" (Doc. # 125). Because the "alternate proposed Second Amended Complaint" 5 includes all allegations made in the "proposed Second Amended Complaint," hereinafter the 6 Court will refer solely to the "alternate proposed Second Amended Complaint" (Doc. #125). 7 On October 22, 2009, Defendants filed an Opposition to Plaintiff's Motion to File a

8 Second Amended Complaint. (Doc. # 122). Defendants contend that "the claims proposed by 9 the Plaintiff [in the `alternate proposed Second Amended Complaint'] are barred as a matter 10 of law." (Doc. # 122 at 1). 11 II. 12 Discussion Rule 15 of the Federal Rules of Civil Procedure mandates that leave to amend "be freely

13 given when justice so requires." Fed. R. Civ. P. 15(a). "This policy is to be applied with 14 extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 15 2003) (quotation omitted). In Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court 16 offered several factors for district courts to consider in deciding whether to grant a motion to 17 amend under Rule 15(a): 18 19 20 In the absence of any apparent or declared reason­such 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.'

21 Foman, 371 U.S. at 182; see also Smith v. Pac. Prop. Dev. Co., 358 F.3d 1097, 1101 (9th Cir. 22 2004) (citing Forman factors). 23 "Not all of the [Foman] factors merit equal weight. As this circuit and others have held,

24 it is the consideration of prejudice to the opposing party that carries the greatest weight." 25 Eminence Capital, 316 F.3d at 1052 (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 26 185 (9th Cir. 1987)). "The party opposing amendment bears the burden of showing prejudice." 27 DCD Programs, 833 F.2d at 187. "Absent prejudice, or a strong showing of any of the 28 remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting
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1 leave to amend." Eminence Capital, 316 F.3d at 1052. 2 "While some courts liken the futility inquiry with that of a motion to dismiss, most

3 recognize that `[d]enial of leave to amend on [futility] ground[s] is rare.'" Defazio v. Hollister, 4 Inc., No. Civ. 04-1358, 2008 WL 2825045, at *2 (E.D. Cal., July 21, 2008) (quoting Netbula 5 v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003); citing, inter alia, Big Bear Lodging 6 Ass'n v. Snow Summit, Inc., 182 F.3d 1096, 1105 (9th Cir. 1999) ("Because this litigation is 7 still in its early stages, leave should be liberally granted unless amendment would be futile.")). 8 Defendant's sole argument against granting leave to amend is futility. "In view of Rule

9 15(a)'s permissive standard, courts ordinarily defer consideration of challenges to the merits 10 of a proposed amended pleading until after leave to amend is granted and the amended 11 pleading is filed." Hynix Semiconductor Inc. v. Toshiba Corp., No. C-04-4708, 2006 WL 12 3093812, at *2 (N.D. Cal., Oct. 31, 2006) ("Hynix's arguments should be addressed in a 13 motion to dismiss or for summary judgment, not in an opposition to the present motion for 14 leave to amend."); see also Netbula, 212 F.R.D. at 539 (same). After reviewing the "alternate 15 proposed Second Amended Complaint," the Court finds that this procedure is appropriate in 16 this case. 17 III. 18 Conclusion IT IS HEREBY ORDERED that the Motion for Leave to Amend is GRANTED. (Doc.

19 # 122). The "alternate proposed Second Amended Complaint," filed as Docket number 125, 20 is the operative complaint in this action. 21 DATED: October 26, 2009 22 23 24 25 26 27 28
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WILLIAM Q. HAYES United States District Judge