Cejas v. Paramo et al

Filing 54

REPORT AND RECOMMENDATION Granting 53 Plaintiff's Unopposed Motion to Amend. Objections to R&R due by 4/18/2018. Replies due by 5/2/2018. Signed by Magistrate Judge William V. Gallo on 04/04/2018.(All non-registered users served via U.S. Mail Service)(ajs)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDREW CEJAS, Case No.: 14-CV-1923-WQH-WVG Plaintiff, 12 13 14 REPORT AND RECOMMENDATION GRANTING PLAINTIFF'S UNOPPOSED MOTION TO AMEND v. DANIEL PARAMO, et al., 15 Defendants. [ECF NO. 53] 16 17 18 19 20 21 22 Presently before the Court is Plaintiff Andrew Cejas’s unopposed Motion for Leave to Amend his Complaint. (ECF No. 53.) For the reasons that follow, the Court RECOMMENDS Plaintiff’s unopposed Motion be GRANTED. I. BACKGROUND Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 on August 15, 2014. (ECF No. 1.) On October 4, 2016, Defendants D. Jaime, D. Paramo, S. Rutledge, and D. 23 Strayhorn moved to dismiss Plaintiff’s claims against Paramo and Jaime. (ECF No. 17.) 24 On September 1, 2017, the Court granted Defendants’ motion to dismiss claims against 25 Paramo and Jaime. (ECF No. 42.) Defendants filed an Answer to Plaintiff’s remaining 26 27 claims on November 8, 2017. (ECF No. 43.) On March 9, 2018, Plaintiff moved for leave to file an amended complaint. (ECF 28 1 14-CV-1923-WQH-WVG 1 2 No. 53.) Defendants did not file a response in opposition to the motion. II. LEGAL STANDARD 3 Pursuant to Federal Rule of Civil Procedure (“Rule”) 15(a), leave to amend a 4 complaint after a responsive pleading has been filed may be allowed by leave of court. Fed. 5 R. Civ. P. 15(a)(2). Such amendments “shall be freely given when justice so requires.” 6 Foman v. Davis, 371 U.S. 178, 182 (1962). “This policy is to be applied with extreme 7 liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). 8 “Since Rule 15 favors a liberal policy towards amendment, the nonmoving party bears the 9 burden of demonstrating why leave to amend should not be granted.” Genentech, Inc. v. 10 Abbot Laboratories, 127 F.R.D. 529, 530-31 (N.D. Cal. 1989) (citing Senza-Gel Corp. v. 11 Seiffhart, 803 F.2d 661, 666 (9th Cir. 1986) (“the nonmovent bears the burden of showing 12 why amendment should not be granted”). 13 When determining whether to grant leave to amend, courts weigh certain factors: 14 “undue delay, bad faith or dilatory motive on the part of [the party who wishes to amend a 15 pleading], repeated failure to cure deficiencies by amendments previously allowed, undue 16 prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of 17 amendment [.]” Foman, 371 U.S. at 182. “Not all of the factors merit equal weight.” 18 Eminence Capital, LLC, 316 F.3d at 1052. For example, “delay alone cannot justify denial 19 of leave to amend.” Genentech, Inc., 127 F.R.D. at 530 (N.D. Cal. 1989) (citing DCD 20 Programs v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); see also Kendrick v. County of 21 San Diego, Case No. 15-CV-2615-GPC(RBB), 2017 WL 2692903, at *5 (S.D. Cal 2017). 22 III. ANALYSIS 23 Here, Plaintiff waited over three and a half years between the filing of his Complaint 24 and his request to file an amended complaint. Plaintiff has offered no reasoning for such a 25 delay other than claiming he has been on lock down “for months.” (ECF No. 53.) To call 26 this undue delay would be an understatement. However, “delay alone cannot justify denial 27 of leave to amend.” Genentech, Inc., 127 F.R.D. at 530 (N.D. Cal. 1989). 28 When examining the remaining Foman factors, the Court finds that leave to amend 2 14-CV-1923-WQH-WVG 1 is appropriate. This is Plaintiff’s first request to amend, thus he has not failed to cure 2 deficiencies in previous amendments. Additionally, Defendants have failed to show, 3 through their lack of an opposition, that Plaintiff is moving to amend in bad faith or that 4 Defendants will suffer undue prejudice by allowing the amendment. 5 6 Accordingly, the Court RECOMMENDS the Motion be GRANTED and Plaintiff be allowed leave to file an amended complaint. 7 IV. CONCLUSION 8 For the reasons set forth above, it is RECOMMENDED that Plaintiff’s Motion to 9 file an amended complaint be GRANTED. This Report and Recommendation will be 10 submitted to the United States District Judge assigned to this case, pursuant to the 11 provisions of 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). 12 IT IS ORDERED that no later than April 18, 2018, any party to this action may 13 file written objections with the Court and serve a copy on all parties. The document shall 14 be captioned “Objection to Report and Recommendation.” 15 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 16 the Court and served on all parties no later than May 2, 2018. The parties are advised that 17 failure to file objections within the specified time may waive the right to raise those 18 objections on appeal. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 IT IS SO ORDERED. Dated: April 4, 2018 21 22 23 24 25 26 27 28 3 14-CV-1923-WQH-WVG

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