Arellano v. Milton et al
REPORT AND RECOMMENDATION re 38 MOTION to name Defendant Doe #2. Upon being served with a copy of this report, the parties have 14 days to file any objections. Upon being served with any objections, the party receiving such objections has 14 days to file any response. Signed by Magistrate Judge Andrew G. Schopler on 7/08/2017.(All non-registered users served via U.S. Mail Service)(jpp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 15-cv-2069-JAH-AGS
REPORT AND RECOMMENDATION
ON PLAINTIFF’S MOTION TO
NAME DEFENDANT DOE #2
(ECF No. 38)
Milton, et al.,
Pro se plaintiff Raul Arellano seeks to amend his first amended complaint to identify
defendant DOE #2 as “T. Paule.” (ECF No. 38.) This motion is unopposed, and the Court
recommends granting it.
After amending the complaint once, a plaintiff may only obtain leave to amend again
with the opposing party’s written consent or leave of court. Fed. R. Civ. P. 15(a)(2). But
the court “should freely give leave [to amend] when justice so requires.” Id. In making this
determination, the Court must consider any reasons that weigh against further amendment,
including “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, [and] futility of amendment.”
Foman v. Davis, 371 U.S. 178, 182 (1962). The most important of these so-called Foman
factors is undue prejudice, which is the “touchstone of the inquiry under rule 15(a).”
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citations
The defense filed no opposition and thus identified no prejudice or other ills that
may arise from such a limited amendment. And it appears that Arellano acted diligently to
identify this defendant. After discovering the name in a medical file disclosed in another
case, he promptly filed the current motion. (ECF No. 38, at 1; ECF No. 44, at 2.)
Thus, this Court recommends that Arellano’s motion to change the name of
defendant DOE #2 to “T. Paule” be GRANTED.
Upon being served with a copy of this report, the parties have 14 days to file any
objections. Upon being served with any objections, the party receiving such objections has
14 days to file any response. See Fed. R. Civ. P. 72(b)(2). If the District Judge grants
Arellano’s motion to amend, Arellano must file his second amended complaint re-naming
DOE #2 as “T. Paule” within 14 days of the District Judge’s order on the matter. Arellano
may not otherwise amend his complaint, except as authorized by the Court.
Dated: July 8, 2017
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?