Gibbs 111 v. San Diego Child Support Services et al

Filing 50

ORDER Granting 44 Motion to Amend Complaint. Plaintiff's motion to amend complaint is granted. Accordingly, Plaintiff's motion for default judgment against SDCCS and Defendant's motion to set aside default are denied as moot. Within fourteen days from the date of this Order, Plaintiff shall file the proposed FAC, which is attached to the motion to amend complaint. Signed by Judge Dana M. Sabraw on 4/10/2017. (All non-registered users served via U.S. Mail Service)(aef)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 14 15 ORDER GRANTING MOTION TO AMEND COMPLAINT Plaintiff, 12 13 Case No. 14-cv-2541 DMS (BLM) SAMUEL W. GIBBS III, v. SAN DIEGO CHILD SUPPORT SERVICES, Defendant. 16 17 This matter comes before the Court on Plaintiff Samuel W. Gibbs III’s motion 18 to amend complaint, seeking to substitute County of San Diego for San Diego Child 19 Support Services (“SDCSS”) as a defendant. For the following reasons, the Court 20 grants the motion. 21 I. 22 BACKGROUND 23 On October 24, 2014, Plaintiff, proceeding pro se, filed a complaint against 24 Defendants Shari L. Kugler and SDCSS. After Plaintiff’s several failed attempts to 25 effect service on Kugler, the Court dismissed the complaint against Kugler on 26 January 26, 2017. 27 On December 27, 2016, Plaintiff filed a request for entry of default against 28 SDCSS, which the Clerk of Court granted on January 3, 2017. Subsequently, on –1– 14-cv-2541 DMS (BLM) 1 February 15, 2017, Plaintiff filed a motion for default judgment against SDCSS. On 2 February 23, 2017, County of San Diego moved to set aside the default entered 3 against its department, SDCSS, arguing defective service was made on an improper 4 defendant because a department of a municipality may not be sued. In response to 5 the motion to set aside default, Plaintiff filed a motion for joinder of parties, 6 requesting that County of San Diego be joined as a defendant. 7 On March 17, 2017, Plaintiff filed a motion to amend complaint accompanied 8 by a proposed first amended complaint (“FAC”), seeking to substitute County of San 9 Diego as a defendant in lieu of SDCSS. County of San Diego filed a response in 10 opposition to the motion. Plaintiff did not file a reply. Instead, Plaintiff filed a 11 motion for pretrial conference. 12 II. 13 DISCUSSION 14 Rule 15 of the Federal Rules of Civil Procedure mandates that district courts 15 “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 16 15(a)(2). “This policy is to be applied with extreme liberality.” Eminence Capital, 17 LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quotation omitted). 18 “[T]he ‘rule favoring liberality in amendments to pleadings is particularly important 19 for [a] pro se litigant. Presumably unskilled in the law, the pro se litigant is far more 20 prone to making errors in pleading than the person who benefits from the 21 representation of counsel.’” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) 22 (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). 23 In determining whether to allow an amendment, courts consider whether there 24 is “undue delay, bad faith or dilatory motive on the part of the movant, repeated 25 failure to cure deficiencies by amendments previously allowed, undue prejudice to 26 the opposing party by virtue of allowance of the amendment, [and] futility of 27 amendment[.]” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Smith v. Pac. 28 Prop. Dev. Co., 358 F.3d 1097, 1101 (9th Cir. 2004) (citing the Forman factors). –2– 14-cv-2541 DMS (BLM) 1 “Not all of the [Foman] factors merit equal weight…. [I]t is the consideration of 2 prejudice to the opposing party that carries the greatest weight.” Eminence Capital, 3 316 F.3d at 1052 (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th 4 Cir. 1987)); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973) (“the 5 crucial factor is the resulting prejudice to the opposing party.”). “The party opposing 6 amendment bears the burden of showing prejudice.” DCD Programs, 833 F.2d at 7 187. “Absent prejudice, or a strong showing of any of the remaining Foman factors, 8 there exists a presumption under Rule 15(a) in favor of granting leave to amend.” 9 Eminence Capital, 316 F.3d at 1052 (italics in original). 10 County of San Diego does not contend the proposed FAC would impose 11 undue prejudice or that Plaintiff has exhibited undue delay or bad faith. Indeed, the 12 Court finds no undue prejudice exists as to County of San Diego, because Plaintiff 13 is not seeking to add new claims or allege new facts with this amendment. Moreover, 14 given Plaintiff’s pro se status and lack of legal expertise, the Court does not find any 15 instance of undue delay or bad faith on the part of Plaintiff in bringing this motion. 16 County of San Diego’s sole argument against granting leave to amend is futility. 17 However, most courts recognize that “‘[d]enial of leave to amend on [futility] 18 ground[s] is rare.’” Defazio v. Hollister, Inc., No. CIV 04-1358 WBS GGH, 2008 19 WL 2825045, at *2 (E.D. Cal. July 21, 2008) (quoting Netbula v. Distinct Corp., 20 212 F.R.D. 534, 539 (N.D. Cal. 2003). To the extent County of San Diego 21 challenges the merits of the FAC, the Court defers consideration of the merits until 22 after Plaintiff files the FAC. See Netbula, 212 F.R.D. at 539 (“Ordinarily, courts 23 will defer consideration of challenges to the merits of a proposed amended pleading 24 until after leave to amend is granted and the amended pleading is filed.”); Hynix 25 Semiconductor Inc. v. Toshiba Corp., No. C-04--4708 VRW, 2006 WL 3093812, at 26 *2 (N.D. Cal. Oct. 31, 2006) (Defendant’s challenges to the merits of a proposed 27 amended pleading “should be addressed in a motion to dismiss or for summary 28 judgment, not in an opposition to the present motion for leave to amend.”). –3– 14-cv-2541 DMS (BLM) 1 Accordingly, after considering the Foman factors, the Court finds that leave to 2 amend should be granted pursuant to Rule 15(a). 3 III. 4 CONCLUSION 5 For the reasons stated above, Plaintiff’s motion to amend complaint is granted. 6 Accordingly, Plaintiff’s motion for default judgment against SDCCS and 7 Defendant’s motion to set aside default are denied as moot. 1 Within fourteen days 8 from the date of this Order, Plaintiff shall file the proposed FAC, which is attached 9 to the motion to amend complaint. IT IS SO ORDERED. 10 11 Dated: April 10, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The Court also denies Plaintiff’s motion for pretrial conference because this motion is not proper at this stage of the proceeding. –4– 14-cv-2541 DMS (BLM)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?