Arellano v. Milton et al

Filing 48

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)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
Raul Arellano,

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Case No.: 15-cv-2069-JAH-AGS
Plaintiff,

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v.

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REPORT AND RECOMMENDATION
ON PLAINTIFF’S MOTION TO
NAME DEFENDANT DOE #2
(ECF No. 38)

Milton, et al.,

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Defendants.

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Pro se plaintiff Raul Arellano seeks to amend his first amended complaint to identify

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defendant DOE #2 as “T. Paule.” (ECF No. 38.) This motion is unopposed, and the Court

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recommends granting it.

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After amending the complaint once, a plaintiff may only obtain leave to amend again

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

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the court “should freely give leave [to amend] when justice so requires.” Id. In making this

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determination, the Court must consider any reasons that weigh against further amendment,

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including “undue delay, bad faith or dilatory motive on the part of the movant, repeated

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failure to cure deficiencies by amendments previously allowed, undue prejudice to the

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opposing party by virtue of allowance of the amendment, [and] futility of amendment.”

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Foman v. Davis, 371 U.S. 178, 182 (1962). The most important of these so-called Foman

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factors is undue prejudice, which is the “touchstone of the inquiry under rule 15(a).”

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15-cv-2069-JAH-AGS

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citations

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omitted).

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The defense filed no opposition and thus identified no prejudice or other ills that

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may arise from such a limited amendment. And it appears that Arellano acted diligently to

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identify this defendant. After discovering the name in a medical file disclosed in another

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case, he promptly filed the current motion. (ECF No. 38, at 1; ECF No. 44, at 2.)

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Thus, this Court recommends that Arellano’s motion to change the name of
defendant DOE #2 to “T. Paule” be GRANTED.

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Upon being served with a copy of this report, the parties have 14 days to file any

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objections. Upon being served with any objections, the party receiving such objections has

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14 days to file any response. See Fed. R. Civ. P. 72(b)(2). If the District Judge grants

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Arellano’s motion to amend, Arellano must file his second amended complaint re-naming

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DOE #2 as “T. Paule” within 14 days of the District Judge’s order on the matter. Arellano

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may not otherwise amend his complaint, except as authorized by the Court.

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Dated: July 8, 2017

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15-cv-2069-JAH-AGS