1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 D.O. Jane Doe, et al., 2:23-cv-01929-APG-MDC 4 Plaintiff(s), ORDER 5 vs. 6 County of Clark, et al., 7 Defendant(s). 8 Pending before the Court is plaintiff’s Motion to Amend (ECF No. 94). For the reasons stated 9 below, the Court GRANTS the motion to amend. 10 DISCUSSION 11 I. BACKGROUND 12 The underlying claims of this case are brought under the Monell theory of liability. Plaintiffs 13 allege that defendants Clark County Department of Family Services and Social Worker Stacy Silverstein 14 for mishandled plaintiffs’ care and supervision while they were wards/foster children of the County of 15 Clark. Plaintiffs now seek leave to amend the Complaint. Specifically, plaintiffs seek to amend the 16 complaint to (1) clarify and streamline the relevant facts after reviewing thousands of juvenile records 17 produced reflecting the handling of Plaintiffs’ foster cases; (2) add Social Workers Roseanne Wood, 18 Darin Taylor, Nadine Carter, Kaitlin Amaya, Valerie Shyface, Natasha Webster, and Staci Brean, as 19 Defendants to this action; and (3) add additional claims for relief under the already plead statute 42 20 U.S.C. 1983 based the discovered fact pertaining to the handling of Plaintiffs’ foster cases, including 21 Unwarranted Medical Examinations/ Procedures, Failure to Provide Dependent Minor Continued Safety, 22 Security, Adequate Care and Supervision, and Violation of Federal Statute. ECF No. 94. 23 II. LEGAL STANDARD 24 Generally, a party may amend its pleadings “as a matter of course” within 21 days of serving it 25 or within 21 days after service of a responsive pleading under Rule 12(b), (e), or (f). Fed. R. Civ. P. 1 15(a)(1). Otherwise, amendments are only permitted “with the opposing party’s written consent or the 2 court’s leave.” Fed. R. Civ. P. 15(a)(2). Rule 15 provides that “[t]he court should freely give leave when 3 justice so requires.” Id. Generally, the Ninth Circuit has held that Rule 15(a) should be “applied with 4 extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). “Five 5 factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue 6 delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously 7 amended the complaint.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) (citing 8 Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)); see also Eminence Capital, LLC, 316 F.3d at 9 1052 (“undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 10 deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of 11 allowance of the amendment, futility of amendment, etc.”) (citing Foman v. Davis, 371 U.S. 178, 182 12 (1962). “In exercising this discretion, a court must be guided by the underlying purpose of Rule 15—to 13 facilitate decision on the merits, rather than on the pleadings or technicalities.” Roth v. Garcia Marquez, 14 942 F.2d 617, 628 (9th Cir. 1991) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). 15 Ultimately, there is considerable deference to amendment and the analysis “should be performed with all 16 inferences in favor of granting the motion.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 17 1999). 18 III. ANALYSIS 19 A. Bad Faith or Dilatory Motive 20 The first factor courts consider is bad faith and/or dilatory motive. “[B]ad faith is not simply bad 21 judgment or negligence, but rather implies the conscious doing of a wrong because of dishonest purpose 22 or moral obliquity…it contemplates a state of mind affirmatively operating with furtive design or ill 23 will.” United States v. Manchester Farming P’Ship, 315 F.3d 1176, 1185 (9th Cir. 2003) (internal 24 citations omitted). In the context of a motion for leave to amend, “bad faith” means acting with intent to 25 deceive, harass, mislead, delay, or disrupt. Cf. Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 1 2006); see Wizards of the Coast LLC v. Cryptozoic Entm’t LLC, 309 F.R.D. 645, 651 (W.D. Wash. 2 2015) (internal citations omitted). “[B]ad faith or dilatory motive may be demonstrated by actions 3 demonstrating gamesmanship…but when a plaintiff can provide a satisfactory explanation for its delay, 4 and there is no evidence in the record that would indicate wrongful motive, there is no cause to uphold 5 the denial of a leave to amend on the basis of bad faith or undue delay.” Ernest Bock, LLC v. Steelman, 6 2021 U.S. Dist. LEXIS 75614, at *14 (D. Nev. April 20, 2021) (citing DCD Programs, Ltd. v. Leighton, 7 833 F.2d 183, 187 (9th Cir. 1987)) (internal quotations omitted). Because defendants do not argue, and 8 because the Court must grant all inferences in favor of allowing amendment, the Court finds that bad 9 faith does not exist. See Holland v. Pinnacle Servs. Inc., 2023 U.S. Dist. LEXIS 156336, at *12-13 (D. 10 Nev. July 25, 2023) (citing Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir.1999)). 11 Therefore, the Court finds that this factor weighs in favor of amendment. 12 B. Undue Delay 13 The second factor courts consider is undue delay. In evaluating whether a Motion to Amend is 14 timely, courts consider (1) whether the amendment was sought before the amended pleadings deadline 15 in a scheduling order and (2) “whether the moving party knew or should have known the facts and 16 theories raised by the amendment in the original pleading.” AmerisourceBergen Corp. v. Dialysist West, 17 Inc., 465 F.3d 946, 953 (9th Cir. 2006) (internal citations omitted). "[D]elay alone no matter how 18 lengthy is an insufficient ground for denial of leave to amend." United States v. Webb, 655 F.2d 977, 19 980 (9th Cir.1981); see also Morongo Band of Mission Indians, 893 F.2d 1074, 1079 (9th Cir.1990). 20 The motion is timely as to the first consideration. The deadline to amend pleadings and add 21 parties was May 6, 2025. See ECF No. 80. Plaintiffs filed their Motion to Amend (ECF No. 94) on May 22 6, 2025. Because plaintiffs sought to amend the complaint before the deadline expired, the motion is 23 timely. Therefore, this factor weighs in favor of amendment, at least on this consideration. 24 The motion is timely as to the second consideration. Defendants argue that plaintiffs were not 25 diligent in seeking amendment. ECF No. 97 at 7-8. Defendants argue that “[p]laintiffs have had the 1 pertinent information for these alleged claims for years, but at least since the onset of litigation.” Id. at 7.
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 D.O. Jane Doe, et al., 2:23-cv-01929-APG-MDC 4 Plaintiff(s), ORDER 5 vs. 6 County of Clark, et al., 7 Defendant(s). 8 Pending before the Court is plaintiff’s Motion to Amend (ECF No. 94). For the reasons stated 9 below, the Court GRANTS the motion to amend. 10 DISCUSSION 11 I. BACKGROUND 12 The underlying claims of this case are brought under the Monell theory of liability. Plaintiffs 13 allege that defendants Clark County Department of Family Services and Social Worker Stacy Silverstein 14 for mishandled plaintiffs’ care and supervision while they were wards/foster children of the County of 15 Clark. Plaintiffs now seek leave to amend the Complaint. Specifically, plaintiffs seek to amend the 16 complaint to (1) clarify and streamline the relevant facts after reviewing thousands of juvenile records 17 produced reflecting the handling of Plaintiffs’ foster cases; (2) add Social Workers Roseanne Wood, 18 Darin Taylor, Nadine Carter, Kaitlin Amaya, Valerie Shyface, Natasha Webster, and Staci Brean, as 19 Defendants to this action; and (3) add additional claims for relief under the already plead statute 42 20 U.S.C. 1983 based the discovered fact pertaining to the handling of Plaintiffs’ foster cases, including 21 Unwarranted Medical Examinations/ Procedures, Failure to Provide Dependent Minor Continued Safety, 22 Security, Adequate Care and Supervision, and Violation of Federal Statute. ECF No. 94. 23 II. LEGAL STANDARD 24 Generally, a party may amend its pleadings “as a matter of course” within 21 days of serving it 25 or within 21 days after service of a responsive pleading under Rule 12(b), (e), or (f). Fed. R. Civ. P. 1 15(a)(1). Otherwise, amendments are only permitted “with the opposing party’s written consent or the 2 court’s leave.” Fed. R. Civ. P. 15(a)(2). Rule 15 provides that “[t]he court should freely give leave when 3 justice so requires.” Id. Generally, the Ninth Circuit has held that Rule 15(a) should be “applied with 4 extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). “Five 5 factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue 6 delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously 7 amended the complaint.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) (citing 8 Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)); see also Eminence Capital, LLC, 316 F.3d at 9 1052 (“undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 10 deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of 11 allowance of the amendment, futility of amendment, etc.”) (citing Foman v. Davis, 371 U.S. 178, 182 12 (1962). “In exercising this discretion, a court must be guided by the underlying purpose of Rule 15—to 13 facilitate decision on the merits, rather than on the pleadings or technicalities.” Roth v. Garcia Marquez, 14 942 F.2d 617, 628 (9th Cir. 1991) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). 15 Ultimately, there is considerable deference to amendment and the analysis “should be performed with all 16 inferences in favor of granting the motion.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 17 1999). 18 III. ANALYSIS 19 A. Bad Faith or Dilatory Motive 20 The first factor courts consider is bad faith and/or dilatory motive. “[B]ad faith is not simply bad 21 judgment or negligence, but rather implies the conscious doing of a wrong because of dishonest purpose 22 or moral obliquity…it contemplates a state of mind affirmatively operating with furtive design or ill 23 will.” United States v. Manchester Farming P’Ship, 315 F.3d 1176, 1185 (9th Cir. 2003) (internal 24 citations omitted). In the context of a motion for leave to amend, “bad faith” means acting with intent to 25 deceive, harass, mislead, delay, or disrupt. Cf. Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 1 2006); see Wizards of the Coast LLC v. Cryptozoic Entm’t LLC, 309 F.R.D. 645, 651 (W.D. Wash. 2 2015) (internal citations omitted). “[B]ad faith or dilatory motive may be demonstrated by actions 3 demonstrating gamesmanship…but when a plaintiff can provide a satisfactory explanation for its delay, 4 and there is no evidence in the record that would indicate wrongful motive, there is no cause to uphold 5 the denial of a leave to amend on the basis of bad faith or undue delay.” Ernest Bock, LLC v. Steelman, 6 2021 U.S. Dist. LEXIS 75614, at *14 (D. Nev. April 20, 2021) (citing DCD Programs, Ltd. v. Leighton, 7 833 F.2d 183, 187 (9th Cir. 1987)) (internal quotations omitted). Because defendants do not argue, and 8 because the Court must grant all inferences in favor of allowing amendment, the Court finds that bad 9 faith does not exist. See Holland v. Pinnacle Servs. Inc., 2023 U.S. Dist. LEXIS 156336, at *12-13 (D. 10 Nev. July 25, 2023) (citing Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir.1999)). 11 Therefore, the Court finds that this factor weighs in favor of amendment. 12 B. Undue Delay 13 The second factor courts consider is undue delay. In evaluating whether a Motion to Amend is 14 timely, courts consider (1) whether the amendment was sought before the amended pleadings deadline 15 in a scheduling order and (2) “whether the moving party knew or should have known the facts and 16 theories raised by the amendment in the original pleading.” AmerisourceBergen Corp. v. Dialysist West, 17 Inc., 465 F.3d 946, 953 (9th Cir. 2006) (internal citations omitted). "[D]elay alone no matter how 18 lengthy is an insufficient ground for denial of leave to amend." United States v. Webb, 655 F.2d 977, 19 980 (9th Cir.1981); see also Morongo Band of Mission Indians, 893 F.2d 1074, 1079 (9th Cir.1990). 20 The motion is timely as to the first consideration. The deadline to amend pleadings and add 21 parties was May 6, 2025. See ECF No. 80. Plaintiffs filed their Motion to Amend (ECF No. 94) on May 22 6, 2025. Because plaintiffs sought to amend the complaint before the deadline expired, the motion is 23 timely. Therefore, this factor weighs in favor of amendment, at least on this consideration. 24 The motion is timely as to the second consideration. Defendants argue that plaintiffs were not 25 diligent in seeking amendment. ECF No. 97 at 7-8. Defendants argue that “[p]laintiffs have had the 1 pertinent information for these alleged claims for years, but at least since the onset of litigation.” Id. at 7. 2 Defendants are correct that the Ninth Circuit has recognized that "[w]here the party seeking amendment 3 knows or should know of the facts upon which the proposed amendment is based but fails to include 4 them in the original complaint, the motion to amend may be denied." Snow Covered Cap., LLC v. 5 Fonfa, 2024 U.S. Dist. LEXIS 16006, at *5 (D. Nev. Jan. 30, 2024) (citing E.E.O.C. v. Boeing Co., 843 6 F.2d 1213, 1222 (9th Cir. 1988)). “[L]eave to amend should not be denied, however, if the movant 7 offers a satisfactory reason for waiting to amend.” Snow Covered Cap., LLC, 2024 U.S. Dist. LEXIS 8 16006, at *5. Plaintiffs reason they waited to amend until they had appropriate evidence upon which to 9 base the new claims (ECF No. 98). See DCD Programs, 833 F.2d at 187 ("[A]ppellants have offered a 10 satisfactory explanation for their delay in naming HFB as a defendant, i.e., they waited until they had 11 sufficient evidence of conduct upon which they could base claims of wrongful conduct."); see also Story 12 v. Midland Funding LLC, 2016 U.S. Dist. LEXIS 139781, 2016 WL 5868077, at *4 (D. Or. Oct. 7, 13 2016) (allowing amendment to add TCPA claims based on information obtained in discovery and noting 14 that, "[a]lleging new claims based on new information does not cause undue delay, even if some of the 15 facts underlying the new claims were available to [Plaintiff] when she filed her initial complaint."). 16 Because plaintiff has provided a satisfactory explanation, and because the Court grants all inferences in 17 favor of amendment, the Court finds that this factor weighs in favor of amendment. 18 C. Prejudice 19 The third factor courts consider prejudice to the opposing party. “Prejudice to the opposing party 20 is the most important factor.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (citing 21 Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 28 L. Ed. 2d 77, 91 S. Ct. 795 22 (1971)). “The party opposing amendment bears the burden of showing prejudice.” Eminence Capital, 23 316 F.3d at 1052. “Absent prejudice, or a strong showing of any of the remaining Foman factors, there 24 exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id. “Where there is a lack of 25 prejudice to the opposing party and the amended complaint is obviously not frivolous, or made as a 1 dilatory maneuver in bad faith, it is an abuse of discretion to deny [a motion to amend].” Howey v. 2 United States, 481 F.2d 1187, 1190-91 (9th Cir. 1973). 3 Defendants argue that they will be prejudiced because they will have to conduct discovery on the 4 new claims and start over. ECF No. 97. That is not sufficient and does not meet the burden of showing 5 undue prejudice. See Underwood v. O’Reilly Auto Enter., LLC, 342 F.R.D. 338, 343 (“[I]t is undue 6 prejudice that warrant denial of leave to amend…Hence, non-movant must show ‘substantial prejudice 7 or substantial negative effect’ if the amendment is allowed.”). As plaintiffs have pointed out, discovery 8 has not yet closed and the parties may still move to extend discovery, if needed. Therefore, the court 9 does not find defendants will face undue prejudice. Thus, this factor weighs in favor of amendment. 10 D. Futility 11 The fourth factor is futility of amendment. To the extent defendants believe that some of 12 plaintiffs’ claims may be barred by statute of limitations or futile, this is better raised in a motion to 13 dismiss. The Court defers addressing the sufficiency of plaintiff’s proposed claims at this time, under the 14 motion to amend rubric, because defendants may seek dismissal after the amendment is filed. See Nev. 15 Power Co. v. Trench Fr., 2020 U.S. Dist. LEXIS 53860, at *4 (D. Nev. March 24, 2020) (citing Netbula, 16 LLC v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003) (“Denial of leave to amend on this ground 17 [futility] is rare. Ordinarily, courts will defer consideration of challenges to the merits of a proposed 18 amended pleading until after leave to amend is granted and the amended pleading is filed.”). “Deferring 19 ruling on the sufficiency of the allegations is preferred in light of the more liberal standards applicable to 20 motions to amend and the fact that the parties' arguments are better developed through a motion to 21 dismiss or motion for summary judgment.” Steward v. CMRE Fin'l Servs., Inc., 2015 U.S. Dist. LEXIS 22 141867, at *2 (D. Nev. Oct. 16, 2015). Accordingly, this factor weighs in favor of amendment. 23 // 24 // 25 // 1 E. Prior Amendments 2 This is plaintiffs’ first request to amend the Complaint. Thus, this factor weighs in favor of 3 || amendment. Cf., Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962) 4 || ooking to a plaintiff's “repeated failure to cure deficiencies by amendments previously allowed”). 5 || 1V. CONCLUSION 6 Because there is no bad faith, undue delay, and undue prejudice, the Court finds that these 7 || factors weigh in favor of amendment. Furthermore, because futility arguments are better raised in a 8 || motion to dismiss and because this is plaintiffs’ first motion to amend, the Court finds that these factors 9 || also weigh in favor of amendment. 10 11 ACCORDINGLY, 12 IT IS ORDERED that: 13 1. The Motion to Amend (ECF No. 94) is GRANTED. 4 2. Plaintiff shall file the Amended Complaint by no later than June 27, 2025. 15 16 17 DATED this 20 day of June 2025. JA 18 IT IS SO ORDERED. LYP~l, AL 20 Lo Hon. Maxtailian 'D.Mouvillier I United sf tes Magistrate Judge 22 ry 23 24 25