Estevez v. United States Attorney's Office for the Southern District of California et al

Filing 21

ORDER denying as moot 9 Defendants' Motion to Dismiss for Failure to State a Claim; granting 16 Plaintiff's Motion for Leave to Amend. The Court GRANTS Plaintiff's motionfor leave to amend and DENIES AS MOOT Defendants' moti on to dismiss. Plaintiff has thirty (30) days from the date of this order to amend his complaint. If Plaintiff chooses not to amend, his complaint may be dismissed with prejudice. Signed by Judge Anthony J. Battaglia on 1/5/2017. (All non-registered users served via U.S. Mail Service)(acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 15cv2941-AJB-JLB JESUS ESTEVEZ, Plaintiff, 12 13 14 (1) ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND (Doc. No. 16); AND v. UNITED STATES ATTORNEY’S OFFICE FOR THE SOUTHERN DISTRICT OF CALIFORNIA, et al., 15 16 (2) DENYING AS MOOT DEFENDANTS’ MOTION TO DISMISS (Doc. No. 9) Defendants. 17 18 19 20 21 22 23 24 25 26 27 Presently before the Court are two motions, Defendants United States Attorney’s Office for the Southern District of California, Federal Bureau of Prison, Western Regional Office, and the United States Marshal for the Southern District of California’s (collectively referred to as “Defendants”) motion to dismiss and Plaintiff Jesus Estevez’s (“Plaintiff”) motion for leave to amend. (Doc. Nos. 9, 16.) Having reviewed the parties’ arguments, the Court finds this motion suitable for determination on the papers and without oral argument in accordance with Civil Local Rule 7.1.d.1. For the reasons set forth more fully below, the Court GRANTS Plaintiff’s unopposed motion for leave to amend, and DENIES AS 28 1 15cv2941-AJB-JLB 1 MOOT Defendants’ motion to dismiss. 2 I. BACKGROUND 3 On December 28, 2015, Plaintiff filed a complaint under 28 U.S.C. § 1361 and filed 4 a motion to proceed in forma pauperis (“IFP”). (Doc. Nos. 1, 2.) Plaintiff claims that 5 Defendants failed to perform duties owed to Plaintiff by not allowing him access to 6 documents under the Freedom of Information Act (“FOIA”). (Doc. No. 1 at 3.) 7 Specifically, Plaintiff requests the issuance of a writ of mandamus to compel Defendants 8 to provide Plaintiff with copies of documents. (Id. at 4.) 9 On May 10, 2016, Plaintiff filed a motion to appoint counsel. (Doc. No. 4.) On 10 August 30, 2016, the Court granted Plaintiff’s motion to proceed IFP, and denied Plaintiff’s 11 motion to appoint counsel. (Doc. No. 5.) On October 27, 2016, Defendants filed a motion 12 to dismiss. (Doc. No. 9.) Defendants assert that Plaintiff’s complaint does not make out a 13 cognizable legal theory. (Doc. 9-1 at 2.) On November 29, 2016, Plaintiff filed a motion 14 for leave to amend his complaint. (Doc. No. 16.) On December 30, 2016, Defendants filed 15 a notice of non-opposition to Plaintiff’s motion to file an amended complaint. (Doc. No. 16 19.) 17 II. LEGAL STANDARD 18 A. 19 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s 20 complaint and allows a court to dismiss a complaint upon a finding that the plaintiff has 21 failed to state a claim upon which relief may be granted. See Navarro v. Block, 250 F.3d 22 729, 732 (9th Cir. 2001). “[A] court may dismiss a complaint as a matter of law for (1) lack 23 of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” 24 SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) 25 (citations omitted). However, a complaint will survive a motion to dismiss if it contains 26 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 27 Twombly, 550 U.S. 544, 570 (2007). In making this determination, a court reviews the 28 contents of the complaint, accepting all factual allegations as true, and drawing all Motion to Dismiss 2 15cv2941-AJB-JLB 1 reasonable inferences in favor of the nonmoving party. Cedars-Sinai Med. Ctr. v. Nat’l 2 League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). 3 B. 4 Pursuant to Federal Rule of Civil Procedure 15(a) leave to amend should be “freely” 5 given when “justice so requires.” Fed. R. Civ. P. 15(a). “This policy is to be applied with 6 extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 7 2003). In Foman v. Davis, 371 U.S. 178, 182 (1962), the Supreme Court offered several 8 factors for district courts to consider in deciding whether to grant a motion to amend under 9 Rule 15(a): Leave to Amend 10 In the absence of any apparent or declared reason – such as undue 11 delay, bad faith or dilatory motive on the part of the movant, 12 repeated failure to cure deficiencies by amendments previously 13 allowed, undue prejudice to the opposing party by virtue of 14 allowance of the amendment, futility of amendment, etc. – the 15 leave sought should, as the rules require, be ‘freely given.’ 16 Foman, 371 U.S. at 182. Additionally, “[a]bsent prejudice, or a strong showing of any of 17 the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of 18 granting leave to amend.” Eminence Capital, 316 F.3d at 1052. 19 III. DISCUSSION 20 In the interests of judicial economy, the Court will first turn to Plaintiff’s motion for 21 leave to amend. In his motion, Plaintiff states that he is a “lay-man of the law” without any 22 prior experience and thus requests leave to amend his complaint. (Doc. No. 16 at 3-4.) In 23 response, Defendants state that they “do not object to or oppose Plaintiff’s motion to file 24 an amended complaint, but rather consent to allow Plaintiff to so amend.” (Doc. No. 19 at 25 2.) 26 As Defendants do not oppose the motion, and this case is still in the earlier stages of 27 litigation, leave to amend does not appear to prejudice Defendants. Additionally, there is 28 no evidence that the motion was brought in bad faith or will cause undue delay. The Court 3 15cv2941-AJB-JLB 1 also notes that the policy in favor of leave to amend being applied with extreme liberality 2 is particularly true, where, as in this case, Plaintiff is a pro se litigant. See Flowers v. First 3 Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002); see also Eldridge v. Block, 832 F.2d 4 1132, 1135 (9th Cir. 1987) (“This policy [favoring amendments to pleadings be applied 5 with extreme liberality] is applied even more liberally to pro se litigants.”). Accordingly, 6 the Court GRANTS Plaintiff’s motion for leave to amend. 7 As a result, Defendants’ motion to dismiss is DENIED AS MOOT. See MMCA 8 Grp. Ltd. v. Hewlett-Packard Co., No. C-06-7067 MMC, 2007 WL 528035, at *2 (N.D. 9 Cal. Feb. 16, 2007); see also Kwan v. Wells Fargo Bank, NA, Case No. 12-CV-1793-IEG 10 (MDD), 2012 WL 12869275, at *1 (S.D. Cal. Oct. 22, 2012); Sater v. Chrysler Grp. LLC, 11 Case No. EDCV 14-00700-VAP (DTBx), 2014 WL 11412674, at *7 (C.D. Cal. Oct. 7, 12 2014). 13 IV. CONCLUSION 14 For the reasons set forth more fully above, the Court GRANTS Plaintiff’s motion 15 for leave to amend and DENIES AS MOOT Defendants’ motion to dismiss. Plaintiff has 16 thirty (30) days from the date of this order to amend his complaint. If Plaintiff chooses not 17 to amend, his complaint may be dismissed with prejudice. 18 19 IT IS SO ORDERED. 20 Dated: January 5, 2017 21 22 23 24 25 26 27 28 4 15cv2941-AJB-JLB

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