1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 Eric John Mata, Case No. 3:22-cv-5054-TLF 7 Plaintiff, v. ORDER DENYING PLAINTIFF’S 8 MOTION FOR LEAVE TO AMEND Washington State Employment Security HIS COMPLAINT 9 Department , 10 Defendants. 11 This matter comes before the Court on plaintiff’s motion to amend his complaint. 12 Dkt. 37. Plaintiff is proceeding pro se. For the reasons set forth below, plaintiff’s motion 13 for leave to amend his complaint is DENIED. 14 BACKGROUND 15 Plaintiff filed his original complaint against the Washington State Employment 16 Security Department on February 28, 2022. Dkt. 5. On April 13, 2022 and May 4, 2022, 17 plaintiff filed amended complaints. Dkt. 17, 19. In plaintiff’s second amended complaint, 18 i.e., the operative complaint, he brings claims of due process violation, harassment, 19 theft of personal identifying information and malicious prosecution against the 20 Washington State Employment Security Department. 21 On October 24, 2022, plaintiff filed a third amended complaint, but did not comply 22 with Local Civil Rule 15. Dkts. 34, 36. Plaintiff filed the instant motion for leave to file an 23 amended complaint thereafter adding claims under the False Claims Act and 24 1 Coronavirus Aid, Relief, and Economic Security Act and defendants Cami Feek, 2 John/Jane Does 1-20, Kitty Johnson, Linda Mastronarde, and the Washington State 3 Office of Administrative Hearings. Dkt. 37. 4 DISCUSSION
5 A. Standard 6 Pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 15(a), “[a] party 7 may amend the party's pleading once as a matter of course at any time before a 8 responsive pleading is served.” Otherwise, the party “may amend the party's pleading 9 only by leave of court or by written consent of the adverse party.” Leave to amend “shall 10 be freely given when justice so requires,” and “this policy is to be applied with extreme 11 liberality.” Id.; Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th 12 Cir.1990). After a responsive pleading has been filed, “leave to amend should be 13 granted unless amendment would cause prejudice to the opposing party, is sought in 14 bad faith, is futile, or creates undue delay.” Martinez v. Newport Beach City, 125 F .3d
15 777, 786 (9th Cir.1997). 16 A proposed amendment that necessitates reopening discovery or that creates 17 the need for further discovery causes undue prejudice to the opposing party. Lockhead 18 Martin Corp. v. Networth Solutions, Inc., 194 F.3d 980, 986 (9th Cir.1999). 19 Leave to amend has also been denied when the moving party knew or should 20 have known the facts upon which the amendment is based when drafting the original 21 pleading, but did not include them in the original pleading. Jordan v. Los Angeles, 669 22 F.2d 1311, 1324 (9th Cir.), vacated on other grounds, 459 U.S. 810 (1982). 23
24 1 B. Plaintiff’s Proposed Third Amended Complaint 2 In plaintiff’s proposed third amended complaint, plaintiff seeks to add claims 3 under the False Claims Act (“FCA”) and the Coronavirus Aid, Relief, and Economic 4 Security Act (“CARES Act”), and add the following new defendants: Employment
5 Security Department Commissioner Cami Feek, John/Jane Does 1-20, Kitty Johnson, 6 Linda Mastronarde, and the Washington State Office of Administrative Hearings. 7 Plaintiff seeks to bring a claim under Section 2102 of the CARES Act. He states 8 only that the CARES Act applies to defendants and “enabled the plaintiff to new 9 property” without providing specific factual allegations. Dkt. 37-2 at p. 2. Even if plaintiff 10 provided specific factual allegations, it would be futile to allow plaintiff to amend his 11 complaint to add this claim because there is no private cause of action under the 12 CARES Act. See Radix L. PLC v. JPMorgan Chase Bank NA, 508 F. Supp. 3d 515, 520 13 (D. Ariz. 2020) (“there is no private right of action to enforce the CARES Act”). See 14 also Am. Video Duplicating, Inc. v. City Nat'l Bank, 2020 WL 6882735, at *4 (C.D. Cal.
15 Nov. 20, 2020) (“Plaintiff's claims for violations of the CARES Act fail because there is 16 no private cause of action to enforce these provisions.”). Thus, plaintiff’s motion for 17 leave to amend his complaint to add a claim under the CARES Act is DENIED. 18 Similarly, it would be futile if the Court allowed plaintiff to amend his complaint to 19 add a claim under the FCA because he is proceeding pro se. Pursuant to 31 U.S.C. § 20 3730(b)(1), a “person,” known as a relator, “may bring a civil action for a violation of 21 Section 3729 for the person and for the United States Government…in the name of the 22 Government.” 31 U.S.C. § 3730(b)(1) (emphasis added). As the Ninth Circuit has 23 explained, “the entire purpose of the FCA’s qui tam provisions is to employ the help of
24 1 individuals to uncover fraud against the government.” United States ex rel. Kelly v. 2 Boeing Co., 9 F.3d 743, 748 (9th Cir.1993). 3 To this end, the FCA motivates “a private individual[to] bring suit in federal 4 court on behalf of the United States ” by effecting a partial assignment of the
5 government's damages claim to the relator. Vt. Agency of Natural Res. V. United States 6 ex rel. Stevens, 529 U.S. 765, 768 (2000) (emphasis added). Further, the general pro 7 se provision set forth in 28 U.S.C. § 1654 provides that “[i]n all courts of the United 8 States the parties may plead and conduct their own cases personally or by counsel....” 9 While this provision allows plaintiff to prosecute his own actions in propria persona, that 10 right is personal to him, and absent some other statutory authorization, he has no 11 authority to prosecute an action in federal court on behalf of others than himself, 12 including the United States Government. See Stoner v. Santa Clara Cnt. Off. of Educ., 13 502 F.3d 1116, 1126 (9th Cir. 2007). 14 Defendants argue that plaintiff should not be granted leave to amend his
15 complaint to bring an FCA claim because he did not file the complaint under seal or 16 comply with other procedural requirements under 31 U.S.C. § 3730(b). Plaintiff would 17 only be required to file the complaint under seal if his motion for leave to amend his 18 complaint was granted by the Court. 19 The operative complaint is plaintiff’s second amended complaint. Dkt. 19. 20 Nonetheless, even though plaintiff was not required to file his motion under seal, it 21 would be futile for the Court to grant him leave to amend to bring a FCA claim in light of 22 his status as a pro se litigant. Plaintiff’s motion for leave to add a claim under the FCA is 23 DENIED.
24 1 Finally, plaintiff seeks to add Feek, Johnson, Mastronarde and the Washington 2 State Office of Administrative Hearings, as defendants to his 42 U.S.C.
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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 Eric John Mata, Case No. 3:22-cv-5054-TLF 7 Plaintiff, v. ORDER DENYING PLAINTIFF’S 8 MOTION FOR LEAVE TO AMEND Washington State Employment Security HIS COMPLAINT 9 Department , 10 Defendants. 11 This matter comes before the Court on plaintiff’s motion to amend his complaint. 12 Dkt. 37. Plaintiff is proceeding pro se. For the reasons set forth below, plaintiff’s motion 13 for leave to amend his complaint is DENIED. 14 BACKGROUND 15 Plaintiff filed his original complaint against the Washington State Employment 16 Security Department on February 28, 2022. Dkt. 5. On April 13, 2022 and May 4, 2022, 17 plaintiff filed amended complaints. Dkt. 17, 19. In plaintiff’s second amended complaint, 18 i.e., the operative complaint, he brings claims of due process violation, harassment, 19 theft of personal identifying information and malicious prosecution against the 20 Washington State Employment Security Department. 21 On October 24, 2022, plaintiff filed a third amended complaint, but did not comply 22 with Local Civil Rule 15. Dkts. 34, 36. Plaintiff filed the instant motion for leave to file an 23 amended complaint thereafter adding claims under the False Claims Act and 24 1 Coronavirus Aid, Relief, and Economic Security Act and defendants Cami Feek, 2 John/Jane Does 1-20, Kitty Johnson, Linda Mastronarde, and the Washington State 3 Office of Administrative Hearings. Dkt. 37. 4 DISCUSSION
5 A. Standard 6 Pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 15(a), “[a] party 7 may amend the party's pleading once as a matter of course at any time before a 8 responsive pleading is served.” Otherwise, the party “may amend the party's pleading 9 only by leave of court or by written consent of the adverse party.” Leave to amend “shall 10 be freely given when justice so requires,” and “this policy is to be applied with extreme 11 liberality.” Id.; Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th 12 Cir.1990). After a responsive pleading has been filed, “leave to amend should be 13 granted unless amendment would cause prejudice to the opposing party, is sought in 14 bad faith, is futile, or creates undue delay.” Martinez v. Newport Beach City, 125 F .3d
15 777, 786 (9th Cir.1997). 16 A proposed amendment that necessitates reopening discovery or that creates 17 the need for further discovery causes undue prejudice to the opposing party. Lockhead 18 Martin Corp. v. Networth Solutions, Inc., 194 F.3d 980, 986 (9th Cir.1999). 19 Leave to amend has also been denied when the moving party knew or should 20 have known the facts upon which the amendment is based when drafting the original 21 pleading, but did not include them in the original pleading. Jordan v. Los Angeles, 669 22 F.2d 1311, 1324 (9th Cir.), vacated on other grounds, 459 U.S. 810 (1982). 23
24 1 B. Plaintiff’s Proposed Third Amended Complaint 2 In plaintiff’s proposed third amended complaint, plaintiff seeks to add claims 3 under the False Claims Act (“FCA”) and the Coronavirus Aid, Relief, and Economic 4 Security Act (“CARES Act”), and add the following new defendants: Employment
5 Security Department Commissioner Cami Feek, John/Jane Does 1-20, Kitty Johnson, 6 Linda Mastronarde, and the Washington State Office of Administrative Hearings. 7 Plaintiff seeks to bring a claim under Section 2102 of the CARES Act. He states 8 only that the CARES Act applies to defendants and “enabled the plaintiff to new 9 property” without providing specific factual allegations. Dkt. 37-2 at p. 2. Even if plaintiff 10 provided specific factual allegations, it would be futile to allow plaintiff to amend his 11 complaint to add this claim because there is no private cause of action under the 12 CARES Act. See Radix L. PLC v. JPMorgan Chase Bank NA, 508 F. Supp. 3d 515, 520 13 (D. Ariz. 2020) (“there is no private right of action to enforce the CARES Act”). See 14 also Am. Video Duplicating, Inc. v. City Nat'l Bank, 2020 WL 6882735, at *4 (C.D. Cal.
15 Nov. 20, 2020) (“Plaintiff's claims for violations of the CARES Act fail because there is 16 no private cause of action to enforce these provisions.”). Thus, plaintiff’s motion for 17 leave to amend his complaint to add a claim under the CARES Act is DENIED. 18 Similarly, it would be futile if the Court allowed plaintiff to amend his complaint to 19 add a claim under the FCA because he is proceeding pro se. Pursuant to 31 U.S.C. § 20 3730(b)(1), a “person,” known as a relator, “may bring a civil action for a violation of 21 Section 3729 for the person and for the United States Government…in the name of the 22 Government.” 31 U.S.C. § 3730(b)(1) (emphasis added). As the Ninth Circuit has 23 explained, “the entire purpose of the FCA’s qui tam provisions is to employ the help of
24 1 individuals to uncover fraud against the government.” United States ex rel. Kelly v. 2 Boeing Co., 9 F.3d 743, 748 (9th Cir.1993). 3 To this end, the FCA motivates “a private individual[to] bring suit in federal 4 court on behalf of the United States ” by effecting a partial assignment of the
5 government's damages claim to the relator. Vt. Agency of Natural Res. V. United States 6 ex rel. Stevens, 529 U.S. 765, 768 (2000) (emphasis added). Further, the general pro 7 se provision set forth in 28 U.S.C. § 1654 provides that “[i]n all courts of the United 8 States the parties may plead and conduct their own cases personally or by counsel....” 9 While this provision allows plaintiff to prosecute his own actions in propria persona, that 10 right is personal to him, and absent some other statutory authorization, he has no 11 authority to prosecute an action in federal court on behalf of others than himself, 12 including the United States Government. See Stoner v. Santa Clara Cnt. Off. of Educ., 13 502 F.3d 1116, 1126 (9th Cir. 2007). 14 Defendants argue that plaintiff should not be granted leave to amend his
15 complaint to bring an FCA claim because he did not file the complaint under seal or 16 comply with other procedural requirements under 31 U.S.C. § 3730(b). Plaintiff would 17 only be required to file the complaint under seal if his motion for leave to amend his 18 complaint was granted by the Court. 19 The operative complaint is plaintiff’s second amended complaint. Dkt. 19. 20 Nonetheless, even though plaintiff was not required to file his motion under seal, it 21 would be futile for the Court to grant him leave to amend to bring a FCA claim in light of 22 his status as a pro se litigant. Plaintiff’s motion for leave to add a claim under the FCA is 23 DENIED.
24 1 Finally, plaintiff seeks to add Feek, Johnson, Mastronarde and the Washington 2 State Office of Administrative Hearings, as defendants to his 42 U.S.C. §1983 claim. 3 Under 42 U.S.C. § 1983, states and their agencies are not proper defendants and 4 therefore cannot be sued under the statute. See Hafer v. Melo, 502 U.S. 21, 25 (1991).
5 Thus, the Washington State Office of Administrative Hearings, a state agency, is not a 6 proper defendant under Section 1983, and it would be futile for the Court to allow 7 plaintiff to add this defendant. 8 As for the individuals plaintiff seeks to add as defendants, plaintiff did not identify 9 whether he seeks to sue the individuals in their official or individual capacities. He also 10 does not specify whether defendants Johnson or Mastronarde are state employees. 11 Plaintiff alleges only that “defendants did not apply the due process clause before the 12 taking of plaintiff’s property and causing injury to his person and property.” Dkt. 37-2, at 13 2. 14 Where a plaintiff fails to identify the capacity in which the state actor is sued,
15 such as the case here, the Ninth Circuit looks beyond the caption of the complaint to the 16 “basis of the claims asserted and the nature of relief sought.” Price v. Akaka, 928 F.2d 17 824, 828 (9th Cir.1990). See also Shoshone–Bannock Tribes v. Fish & Game 18 Commission, 42 F.3d 1278, 1284 (9th Cir.1994) (erecting presumption that Plaintiffs 19 sued state officials in their individual capacities as “any other construction would be 20 illogical ...”). The bare assertions of the complaint do not allow the Court to evaluate this 21 issue, and plaintiff fails to assert facts that would support a plausible claim for relief 22 under either theory. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 23
24 1 Moreover, if the Court granted plaintiff’s motion, the parties would need to 2 conduct further discovery. See Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th 3 Cir. 1990) (“Putting the defendants through the time and expense of continued litigation 4 on a new theory, with the possibility of additional discovery, would be manifestly unfair
5 and unduly prejudicial.”) (quoting Priddy v. Edelman, 883 F.2d 438, 447 (6th Cir. 1989)); 6 Acri v. International Ass'n of Machinists & Aerospace Workers, 781 F.2d 1393, 1398-99 7 (9th Cit. 1986) (affirming the denial of leave to amend and holding that the district court 8 did not abuse its discretion in concluding that allowing amendment would prejudice the 9 defendant because of the necessity for further discovery). For this reason, the Court 10 DENIES plaintiff leave to amend his Section 1983 claim. 11 CONCLUSION 12 For the reasons discussed above, plaintiff’s motion for leave to amend his 13 complaint is DENIED with prejudice. The operative complaint in this matter is plaintiff’s 14 second amended complaint (Dkt. 19).
15 16 Dated this 2nd day of March, 2023. 17 18 A 19 Theresa L. Fricke 20 United States Magistrate Judge
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