Eubanks v. Baker et al

Filing 30

ORDERED that petitioner's motion for leave to amend (ECF No. 29 ) is granted. Amended petition for writ of habeas corpus due by June 5, 2017. Answer/response to petition due 60 days after filing of amended petition. Reply due 45 days afte r service of answer; Response to Reply due 30 days thereafter. If respondents file a motion to dismiss, petitioner will have 30 days following service of the motion to file and serve an opposition to the motion. Respondents will thereafter have 30 days following service of the opposition to the motion to file and serve a reply. Petitioner's motion to partially waive Local Rule IA 10-3(E) (ECF No. 28 ) is granted. Signed by Judge Miranda M. Du on 4/5/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHARLES EUBANKS,

Case No. 3:16-cv-00336-MMD-WGC
Petitioner,

ORDER

v.

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RENEE BAKER, et al.,
Respondents.

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Petitioner Eubanks has filed a motion for leave to amend his federal habeas

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petition. (ECF No. 29.) Eubanks has already filed one amended petition (ECF No. 16) but

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represents to the Court that he requires several months of review, investigation, and

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preparation before an adequate amended petition can be filed. Respondents have filed

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no response to the motion.

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Under 28 U.S.C. § 2242, a petition for writ of habeas corpus “may be amended or

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supplemented as provided in the rules of procedure applicable to civil actions.” Federal

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Rule of Civil Procedure 15(a)(1) provides that “[a] party may amend its pleading once as

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a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which

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a responsive pleading is required, 21 days after service of a responsive pleading or 21

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days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R.

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Civ. P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing

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party's written consent or the court's leave. The court should freely give leave when justice

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so requires.” Fed. R. Civ. P. 15(a)(2). Whether to grant leave to amend rests in the sound

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discretion of the trial court. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citing

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Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir.1993)). “In exercising its

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discretion ‘a court must be guided by the underlying purpose of Rule 15 — to facilitate

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decision on the merits rather than on the pleadings or technicalities.’” DCD Programs,

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Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987) (quoting United States v. Webb, 655

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F.2d 977, 979 (9th Cir. 1981)).

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This Court finds that the factors that normally weigh against allowing amendment

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— i.e., bad faith, undue delay, prejudice to the opposing party — are absent here. See

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Bonin, 59 F.3d at 845 (discussing factors to be considered under Fed. R. Civ. P. 15(a)(2)).

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In addition, Eubanks’ interest in having all of his potential claims for relief placed before

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the Court outweighs actors weighing against allowing amendment. Moreover,

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respondents have not opposed the request for leave to amend. Thus, the motion will be

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granted. See Webb, 655 F.2d at 979 (“Rule 15's policy of favoring amendments to

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pleadings should be applied with ‘extreme liberality.’” (Citation omitted.)).

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It is therefore ordered that petitioner’s motion for leave to amend (ECF No. 29) is

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granted. Petitioner will file an amended petition for writ of habeas corpus on or before

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June 5, 2017, which must include all known grounds for relief (both exhausted and

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unexhausted).

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It is further ordered that counsel for respondents will have sixty (60) days after the

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filing of the amended petition within which to answer, or otherwise respond to the petition.

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Petitioner will have forty-five (45) days following service of an answer by

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respondents to file and serve a reply. Respondents will thereafter have thirty (30) days

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following service of a reply to file and serve a response to the reply.

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If respondents file a motion to dismiss, petitioner will have thirty (30) days following

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service of the motion to file and serve an opposition to the motion. Respondents will

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thereafter have thirty (30) days following service of the opposition to the motion to file and

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serve a reply.

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It is further ordered that petitioner’s motion to partially waive Local Rule IA 10-3(E)
(ECF No. 28) is granted.
DATED THIS 5th day of April 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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