1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY GETTINGS, No. 2:21-cv-01139-DJC-DB 12 Plaintiff, 13 v. ORDER 14 RYAN KACALEK, et al., 15 Defendants. 16 17 Plaintiff has filed a motion for leave to amend the complaint. (ECF No. 33.) 18 Plaintiff was previously proceeding pro se in this action but in January 2023 counsel 19 appeared for Plaintiff. ( ECF No. 27.) Following the appearance of Plaintiff’s 20 counsel, on March 14, 2023, District Judge Dale A. Drozd denied Defendants’ prior 21 motion to dismiss without prejudice and ordered the parties to meet and confer and 22 “to do their part to avoid unnecessary motion practice . . . .” (ECF No. 29.) On March 23 28, 2023, Defendants filed a renewed motion to dismiss that is still pending before the 24 Court. (ECF No. 30.) Plaintiff did not file any response to that motion until June 14, 25 2023, when a motion to amend the complaint was filed. (ECF No. 33.) Defendants 26 have opposed the motion to amend (ECF No. 34) and Plaintiff filed a reply to that 27 opposition (ECF No. 35). 28 //// 1 The Federal Rules of Civil Procedure require that leave to amend be “freely give 2 leave when justice so requires.” Fed R. Civ. P. 15(a)(2). In determining the propriety of 3 a motion for leave to amend courts generally weigh “(1) bad faith, (2) undue delay, (3) 4 prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff 5 has previously amended his complaint.” , 911 F.2d 367, 373 (9th 6 Cir. 1990). Absent the prejudice factor, there is “a presumption under Rule 15(a) in 7 favor of granting leave to amend” unless there is “a strong showing” of the remaining 8 factors. , 316 F.3d 1048, 1052 (9th Cir. 2003). 9 Good cause appearing, the Court will grant Plaintiff leave to file an amended 10 complaint. Considering the five factors described in the Court concludes that 11 most favor permitting the Plaintiff to amend his complaint. The current operative 12 complaint was filed when Plaintiff was proceeding pro se. It is reasonable for Plaintiff 13 to amend the complaint having obtained the assistance and expertise of counsel. 14 , 498 Fed. Appx 707, 708 (9th Cir. 2012) (finding it was 15 an abuse of discretion for a district court to dismiss an action without leave to amend 16 as the plaintiff was previously pro se, had indicated he had recently obtained counsel, 17 and it was not clear that the complaint could not be cured by amendment). There are 18 no indications that this request was made in bad faith and the request is one that the 19 Court would expect Plaintiff to make given his now represented status. 20 It is not clear to the Court at this stage that amendment is futile as the proposed 21 amended complaint substantially modifies the claims presented by the Plaintiff, fully 22 restructures the Complaint, and alters the presentation of some of the factual 23 allegations. An amendment is only futile if there is “no set of facts can be proved 24 under the amendment to the pleadings that would constitute a valid and sufficient 25 claim or defense.” , 847 F.3d 646, 656 (9th Cir. 2017) 26 (citation omitted). It is not clearly apparent from the current operative complaint that 27 Plaintiff is unable to plead a set of facts that would be sufficient to state a claim. This is 28 supported by the substantial revisions to the claims presented and the presentation of 1 facts associated with those claims in the proposed amended complaint. Defendants 2 suggest that the proposed amended complaint “contains the same deficient factual 3 allegations” that are in the current operative complaint, but given the substantially 4 altered nature of the complaint, this is not immediately apparent to the Court. (ECF 5 No. 34 at 10.) Defendants’ arguments are more suited to a motion to dismiss. 6 Permitting amendment of the complaint also would not meaningfully prejudice 7 the Defendants. The Court is cognizant of the added litigation expense required to 8 respond to an amended complaint and that permitting amendment would add delay 9 to the speedy resolution of this action. However, this is the first and only request 10 Plaintiff has made to amend the complaint having obtained counsel. Permitting 11 Plaintiff to amend with the assistance and guidance of counsel is in the interest of all 12 parties as it will help make litigation efficient and expedient. As evidence of this, the 13 proposed amended complaint reduces the number of claims presented by the 14 Plaintiff, presumably focusing the Court and parties on the most viable of Plaintiff’s 15 claims. Moreover, procedurally this case is still in the preliminary stages, and there is 16 no suggestion that the parties have engaged in meaningful discovery on the 17 preexisting claims. , 902 F.2d 1385, 1387–88 (9th 18 Cir. 1990) (finding the existence of undue prejudice where parties had already 19 engaged in discovery and extensive litigation prior to the motion to amend). Finally, 20 Defendants’ argument — that amendment is futile because the amended complaint 21 presents the same factual deficiencies as they suggest in their motion to dismiss — 22 undercuts claims of prejudice based on the costs of litigation, as Defendants would be 23 able to simply modify and renew their currently pending motion to dismiss. As such, 24 Defendants have not established the existence of prejudice that would outweigh the 25 interests of the Court and parties in permitting amendment. 26 Considering undue delay, this factor is a closer call. Though there was certainly 27 a delay in filing this motion, the request was made following Plaintiff obtaining counsel 28 midway through the pleading stage of this case where he had previously been 1 proceeding pro se. The delay present in this case and the fact that this is Plaintiff’s first 2 motion to amend the complaint after obtaining counsel do not raise the same issues 3 of knowledge about facts and theories that would raise this to the level of “undue” 4 delay. , 902 F.2d at 1388. 5 While the Court does not find that there was undue delay, it does recognize 6 that there was a delay in Plaintiff filing this motion due to what appears to be counsel’s 7 lack of diligence. Of particular concern to the Court, Judge Drozd denied without 8 prejudice a motion to dismiss that was pending when Plaintiff’s counsel first appeared 9 in the case to allow parties to meet and confer. There is no indication during that 10 meet and confer which led to Defendants filing a renewed motion to dismiss that 11 Plaintiff’s counsel raised stipulating to the filing of an amended complaint. Counsel’s 12 failure to file this motion earlier, file an opposition to Defendants’ motion to dismiss, 13 seek an extension of time to do so, or make a filing of any sort in the time after the 14 substitution of counsel was filed in January is not indicative of the sort of diligent 15 representation that is expected of counsel. The Court understands that Plaintiff’s 16 counsel is facing a “ridiculous workload” and major life changes (ECF No. 35 at 2), but 17 this does not alter counsel’s duty to actively litigate on behalf of their clients and seek 18 extensions of time where it is appropriate. Ultimately, however, the Court concludes 19 the roughly six month delay from counsel being retained or the three month delay 20 between when Judge Drozd denied without prejudice the Motion to Dismiss the First 21 Amended Complaint, is not “undue.” 22 Balancing the equities, the Court will GRANT leave to file an amended 23 complaint.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY GETTINGS, No. 2:21-cv-01139-DJC-DB 12 Plaintiff, 13 v. ORDER 14 RYAN KACALEK, et al., 15 Defendants. 16 17 Plaintiff has filed a motion for leave to amend the complaint. (ECF No. 33.) 18 Plaintiff was previously proceeding pro se in this action but in January 2023 counsel 19 appeared for Plaintiff. ( ECF No. 27.) Following the appearance of Plaintiff’s 20 counsel, on March 14, 2023, District Judge Dale A. Drozd denied Defendants’ prior 21 motion to dismiss without prejudice and ordered the parties to meet and confer and 22 “to do their part to avoid unnecessary motion practice . . . .” (ECF No. 29.) On March 23 28, 2023, Defendants filed a renewed motion to dismiss that is still pending before the 24 Court. (ECF No. 30.) Plaintiff did not file any response to that motion until June 14, 25 2023, when a motion to amend the complaint was filed. (ECF No. 33.) Defendants 26 have opposed the motion to amend (ECF No. 34) and Plaintiff filed a reply to that 27 opposition (ECF No. 35). 28 //// 1 The Federal Rules of Civil Procedure require that leave to amend be “freely give 2 leave when justice so requires.” Fed R. Civ. P. 15(a)(2). In determining the propriety of 3 a motion for leave to amend courts generally weigh “(1) bad faith, (2) undue delay, (3) 4 prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff 5 has previously amended his complaint.” , 911 F.2d 367, 373 (9th 6 Cir. 1990). Absent the prejudice factor, there is “a presumption under Rule 15(a) in 7 favor of granting leave to amend” unless there is “a strong showing” of the remaining 8 factors. , 316 F.3d 1048, 1052 (9th Cir. 2003). 9 Good cause appearing, the Court will grant Plaintiff leave to file an amended 10 complaint. Considering the five factors described in the Court concludes that 11 most favor permitting the Plaintiff to amend his complaint. The current operative 12 complaint was filed when Plaintiff was proceeding pro se. It is reasonable for Plaintiff 13 to amend the complaint having obtained the assistance and expertise of counsel. 14 , 498 Fed. Appx 707, 708 (9th Cir. 2012) (finding it was 15 an abuse of discretion for a district court to dismiss an action without leave to amend 16 as the plaintiff was previously pro se, had indicated he had recently obtained counsel, 17 and it was not clear that the complaint could not be cured by amendment). There are 18 no indications that this request was made in bad faith and the request is one that the 19 Court would expect Plaintiff to make given his now represented status. 20 It is not clear to the Court at this stage that amendment is futile as the proposed 21 amended complaint substantially modifies the claims presented by the Plaintiff, fully 22 restructures the Complaint, and alters the presentation of some of the factual 23 allegations. An amendment is only futile if there is “no set of facts can be proved 24 under the amendment to the pleadings that would constitute a valid and sufficient 25 claim or defense.” , 847 F.3d 646, 656 (9th Cir. 2017) 26 (citation omitted). It is not clearly apparent from the current operative complaint that 27 Plaintiff is unable to plead a set of facts that would be sufficient to state a claim. This is 28 supported by the substantial revisions to the claims presented and the presentation of 1 facts associated with those claims in the proposed amended complaint. Defendants 2 suggest that the proposed amended complaint “contains the same deficient factual 3 allegations” that are in the current operative complaint, but given the substantially 4 altered nature of the complaint, this is not immediately apparent to the Court. (ECF 5 No. 34 at 10.) Defendants’ arguments are more suited to a motion to dismiss. 6 Permitting amendment of the complaint also would not meaningfully prejudice 7 the Defendants. The Court is cognizant of the added litigation expense required to 8 respond to an amended complaint and that permitting amendment would add delay 9 to the speedy resolution of this action. However, this is the first and only request 10 Plaintiff has made to amend the complaint having obtained counsel. Permitting 11 Plaintiff to amend with the assistance and guidance of counsel is in the interest of all 12 parties as it will help make litigation efficient and expedient. As evidence of this, the 13 proposed amended complaint reduces the number of claims presented by the 14 Plaintiff, presumably focusing the Court and parties on the most viable of Plaintiff’s 15 claims. Moreover, procedurally this case is still in the preliminary stages, and there is 16 no suggestion that the parties have engaged in meaningful discovery on the 17 preexisting claims. , 902 F.2d 1385, 1387–88 (9th 18 Cir. 1990) (finding the existence of undue prejudice where parties had already 19 engaged in discovery and extensive litigation prior to the motion to amend). Finally, 20 Defendants’ argument — that amendment is futile because the amended complaint 21 presents the same factual deficiencies as they suggest in their motion to dismiss — 22 undercuts claims of prejudice based on the costs of litigation, as Defendants would be 23 able to simply modify and renew their currently pending motion to dismiss. As such, 24 Defendants have not established the existence of prejudice that would outweigh the 25 interests of the Court and parties in permitting amendment. 26 Considering undue delay, this factor is a closer call. Though there was certainly 27 a delay in filing this motion, the request was made following Plaintiff obtaining counsel 28 midway through the pleading stage of this case where he had previously been 1 proceeding pro se. The delay present in this case and the fact that this is Plaintiff’s first 2 motion to amend the complaint after obtaining counsel do not raise the same issues 3 of knowledge about facts and theories that would raise this to the level of “undue” 4 delay. , 902 F.2d at 1388. 5 While the Court does not find that there was undue delay, it does recognize 6 that there was a delay in Plaintiff filing this motion due to what appears to be counsel’s 7 lack of diligence. Of particular concern to the Court, Judge Drozd denied without 8 prejudice a motion to dismiss that was pending when Plaintiff’s counsel first appeared 9 in the case to allow parties to meet and confer. There is no indication during that 10 meet and confer which led to Defendants filing a renewed motion to dismiss that 11 Plaintiff’s counsel raised stipulating to the filing of an amended complaint. Counsel’s 12 failure to file this motion earlier, file an opposition to Defendants’ motion to dismiss, 13 seek an extension of time to do so, or make a filing of any sort in the time after the 14 substitution of counsel was filed in January is not indicative of the sort of diligent 15 representation that is expected of counsel. The Court understands that Plaintiff’s 16 counsel is facing a “ridiculous workload” and major life changes (ECF No. 35 at 2), but 17 this does not alter counsel’s duty to actively litigate on behalf of their clients and seek 18 extensions of time where it is appropriate. Ultimately, however, the Court concludes 19 the roughly six month delay from counsel being retained or the three month delay 20 between when Judge Drozd denied without prejudice the Motion to Dismiss the First 21 Amended Complaint, is not “undue.” 22 Balancing the equities, the Court will GRANT leave to file an amended 23 complaint. However, Plaintiff’s counsel is warned that the Court will not tolerate 24 further delays in this litigation. 25 Accordingly, and good cause appearing, IT IS HEREBY ORDERED that: 26 1. Plaintiff’s Motion to Amend the Complaint (ECF No. 33) is GRANTED; 27 2. Within seven (7) days of this order Plaintiff shall file the proposed amended 28 complaint as the First Amended Complaint in this action; and 1 3. Defendant's Motion to Dismiss (ECF No. 30) is DENIED without prejudice. 2 3 4 IT IS SO ORDERED. 5 | Dated: _ August 30, 2023 iabea □□ Hon. Daniel labretta 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 || DJC1 - gettings21cv01139.mtat+mtd 15 16 17 18 19 20 21 22 23 24 25 26 27 28