Denton v. Pastor et al

Filing 149

ORDER Granting Plaintiff's 145 Motion for Leave to Amend, signed by Judge Theresa L Fricke. Counsel is directed to e-file their Amended Complaint within seven days, on or before December 27, 2019. (GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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MICHAEL DENTON,
Case No. C17-5075 BHS-TLF

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Plaintiff,

PAUL A PASTOR, et al.,
Defendants.

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ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO AMEND

v.

This matter is before the Court on plaintiff’s motion for leave to amend and

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proposed amended complaint. Dkt. 145. Defendant has filed a response opposing

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plaintiff’s motion (Dkt. 147) and plaintiff has filed a reply in support of the motion (Dkt.

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148). In addition, plaintiff also asks the Court to find that the proposed second amended

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complaint relates back to the original filing date of this action. Dkt 145, 148. This matter

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has been referred to the undersigned Magistrate Judge. Mathews, Sec’y of H.E.W. v.

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Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a)(4). For the

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reasons set forth below, the Court GRANTS plaintiff’s motion for leave to amend but

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declines to find that the second amended complaint relates back to the original filing

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date of this action.

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FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed the original complaint on February 1, 2017 under 42 U.S.C. § 1983

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raising 11 claims against more than a dozen named defendants. Dkt. 11. Plaintiff

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proceeded pro se and in forma pauperis. Dkt. 1, 7, 8. The defendants named in the

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ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO AMEND - 1

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original complaint filed a motion to dismiss. Dkt. 29. The Court granted the defendants’

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motion as to plaintiff’s claims predicated on violations of PREA and denied defendants’

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motion as to the remaining claims. Dkt. 65, 79.
The Court subsequently allowed plaintiff to file an amended complaint, in which

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he named additional defendants, asserting 20 claims alleging violations of his federal

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constitutional rights. Dkt. 85, 86. Defendants moved to dismiss plaintiff’s amended

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complaint. Dkt. 104. The Report and Recommendation stated the Court should deny

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defendants’ motion in part and grant defendants’ motion in part. Dkt. 126. On January

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31, 2019 the Court declined to adopt the Report and Recommendation, referring the

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matter to the undersigned for consideration of the merits of a fully briefed motion on the

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issue of res judicata. Dkt. 130.
On April 11, 2019 Darryl Parker filed a notice of appearance on behalf of plaintiff.

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Dkt. 133. Plaintiff’s counsel represented plaintiff during the new briefing period on the

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issue of res judicata. On August 21, 2019 the undersigned filed a report and

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recommendation regarding the issue of res judicata. Dkt. 139. On September 10, 2019

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the Court adopted the Report and Recommendation. Dkt. 142. Defendants have filed an

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answer to plaintiff’s amended complaint. Dkt. 143. Defendant informs the Court, and

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plaintiff does not deny, that the parties conducted a CR 26(f) conference by telephone,

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the parties agreed to exchange their initial disclosures and the parties have served

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initial interrogatories and requests for production. Dkt 146 at 2; 147; 147-1 at 2-3, 7; 148

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at 3-4.

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Defendants indicate that they have served plaintiff with initial disclosures and

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answers to plaintiff’s first set of discovery requests. Dkt. 147-1 at 5. Plaintiff has not

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ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO AMEND - 2

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served defendants his initial disclosures or responses to defendants’ discovery

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requests. Dkt. 148 at 3. The parties have not submitted a joint status report and the

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Court has not set a pre-trial schedule.
DISCUSSION

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I.

Motion for Leave to Amend
Plaintiff seeks leave to amend the complaint in order to “add defendants, facts

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and claims of relief arising out of the same core facts as his original Complaint from

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when he was a pro se litigant.” Dkt. 145 at 2. Defendants oppose the motion arguing

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that plaintiff did not provide defendants proper notice regarding the additional claims

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and defendants that plaintiff now seeks to add in the second amended complaint. Dkt.

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146 at 1-2, 5-6. Defendants also argue that plaintiff does not provide an explanation for

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the delay in seeking leave to file the second amended complaint. Id. at 5-6. Finally,

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defendants also raise defenses to plaintiff’s second amended complaint, including that

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certain claims are barred by the statute of limitation, the proposed amended complaint

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realleges claims previously dismissed in this litigation and that the additional claims fail

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to state a claim upon which relief could be granted. Id. at 4-6.

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Pursuant to Federal Rule of Civil Procedure 15(a), after an initial period for

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amendment as of right, pleadings may be amended only with the opposing party’s

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written consent or by leave of the court. Leave to amend should be freely given when

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justice so requires. Fed.R.Civ.P. 15(a)(2); Desertrain v. City of Los Angeles, 754 F.3d

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1147, 1154 (9th Cir. 2014) (“[T]his policy is to be applied with extreme liberality.”)

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The Court must consider five factors when determining the propriety for leave to
amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment,

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ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO AMEND - 3

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and whether the plaintiff has previously amended the complaint. Desertrain, 754 F.3d at

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1154; Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). Additionally, for each of

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these factors, the party opposing amendment has the burden of showing that

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amendment is not warranted. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th

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Cir. 1987); see also Richardson v. United States, 841 F.2d 993, 999 (9th Cir. 1988).

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There is no evidence that plaintiff seeks to amend the complaint in bad faith or to

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cause delay. The Court also finds that there is no undue delay because plaintiff initiated

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this action pro se and plaintiff’s current counsel entered notice of appearance during the

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briefing period for defendants’ latest motion to dismiss.

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Additionally, the motion for leave to amend was filed less than two months after

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the District Court adopted the undersigned’s Report and Recommendation. The

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proposed second amended complaint incorporates the District Court’s ruling.

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Accordingly, there was no undue delay in seeking leave to amend.

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Defendants have not shown they will be prejudiced if plaintiff is granted leave to

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amend. Although the parties have been engaged in motion practice, the parties are still

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at an early stage of this litigation. In fact, the parties have not submitted a joint status

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report and the Court has not set a pre-trial schedule. Additionally, the parties are at an

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early stage of discovery and have not yet taken depositions. Accordingly, defendants

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have failed to meet their burden of showing that they will be prejudiced if plaintiff is

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allowed to amend the operative complaint.

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Finally, defendants have not made a showing that the amended complaint would

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be futile. The Court acknowledges that defendants have raised a number of defenses to

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ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO AMEND - 4

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the merits of plaintiff’s amended complaint. Yet those defenses may be tested through

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discovery and potentially through motion practice.
Accordingly, the Court finds that plaintiff’s motion for leave to amend should be

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granted.

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II.

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Relation Back to the Original Filing Date
In addition to seeking leave to amend the complaint, plaintiff asks the Court to

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find that the proposed second amended complaint relates back to the original filing date.

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Dkt. 145. Plaintiff did not brief this issue in their motion to amend, instead including this

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request in the conclusion of the motion and the proposed order without explanation. Dkt.

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145, 145-1. Plaintiff briefed this issue and provided arguments in support of the request

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only in their reply brief. Dkt. 148 at 6.

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The Court declines to consider this issue because plaintiff did not properly raise

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the issue in their motion and addressed the issue for the first time in their reply brief.

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Vasquez v. Rackauckas, 734 F.3d 1025, 1054 (9th Cir. 2013) (“Because we do not

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consider issues raised for the first time in reply briefs, we deem this late-raised

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argument forfeited.”); United States v. Wright, 215 F.3d 1020, 1030 n.3 (9th Cir. 2000)

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(declining to consider an argument raised for the first time in the reply brief).

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CONCLUSION

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Based on the foregoing, it is ORDERED:

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(1) Plaintiff’s motion for leave to amend (Dkt. 145) is GRANTED.

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(2) Counsel for plaintiff is directed to file plaintiff’s second amended complaint

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within seven days, on or before December 27, 2019.

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ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO AMEND - 5

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(3) The Clerk shall send a copy of this Order to the parties.

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Dated this 20th day of December, 2019.

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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO AMEND - 6