1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MASA NATHANIEL WARDEN, No. 2:19-cv-00431-TLN-AC 12 Plaintiff, 13 v. ORDER 14 BRYAN COWAN, et al, 15 Defendants. 16 17 This matter is before the Court on Plaintiff Masa Nathaniel Warden’s (“Plaintiff”) Motion 18 for Leave to File an Amended Complaint, to Amend the Scheduling Order, and to Reopen 19 Discovery. (ECF No. 83.) Defendants Bryan Cowan, Will Williams, and Nick Weaver 20 (collectively, “Defendants”) filed an opposition. (ECF No. 84.) Plaintiff filed a reply. (ECF No. 21 86.) For the reasons set forth below, the Court GRANTS in part and DENIES in part Plaintiff’s 22 motion. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 This case arises out of an incident in Redding, California on July 23, 2018, in which 3 Defendants fired shots at Plaintiff during his arrest. (ECF No. 13 at 3.) Plaintiff filed a pro se 4 prisoner complaint on February 19, 2019. (ECF No. 1.) Plaintiff filed the operative First 5 Amended Complaint (“FAC”) on April 15, 2019. (ECF No. 13.) On May 30, 2019, the 6 magistrate judge issued a screening order allowing Plaintiff to proceed with excessive force 7 claims against Defendants. (ECF No. 15.) Plaintiff subsequently filed several motions for 8 appointment of counsel, all of which the magistrate judge denied. (ECF Nos. 30, 37, 47.) 9 On January 8, 2020, the magistrate judge issued a scheduling order which required the 10 parties to complete discovery by May 8, 2020 and set a July 24, 2020 deadline for filing pretrial 11 motions. (ECF No. 35.) On July 24, 2020, Defendants filed a motion for summary judgment. 12 (ECF No. 43.) The magistrate judge issued findings and recommendations on September 18, 13 2020, recommending that Defendants’ motion for summary judgment be granted as to Williams 14 but denied as to Cowan and Weaver. (ECF No. 52.) On November 18, 2020, the magistrate 15 judge appointed counsel for Plaintiff. (ECF No. 55.) The Court adopted the findings and 16 recommendations in full on November 23, 2020. (ECF No. 56.) 17 On December 9, 2020, Defendants filed an interlocutory appeal. (ECF No. 63.) On June 18 6, 2022, the Ninth Circuit affirmed the Court’s order. (ECF No. 78.) On July 22, 2022, Plaintiff 19 — now represented by counsel — filed the instant motion for leave to add defendants, claims, 20 and allegations to his FAC. (ECF No. 83.) Plaintiff also seeks leave to amend the scheduling 21 order and to reopen discovery. (Id.) 22 II. STANDARD OF LAW 23 Granting or denying leave to amend a complaint rests in the sound discretion of the trial 24 court. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). When the Court issues a 25 scheduling order that establishes a timetable to amend the complaint, Federal Rule of Civil 26 Procedure (“Rule”) 16 governs any amendments to the complaint. Coleman v. Quaker Oats Co., 27 232 F.3d 1271, 1294 (9th Cir. 2000). To allow for amendment under Rule 16, a plaintiff must 28 show good cause for not having amended the complaint before the time specified in the 1 scheduling order. Id. The good cause standard primarily considers the diligence of the party 2 seeking the amendment. Johnson v. Mammoth Recs., Inc., 975 F.2d 604, 609 (9th Cir. 1992). 3 Even if the good cause standard is met under Rule 16, the Court has the discretion to 4 refuse amendment if it finds reasons to deny leave to amend under Rule 15(a). Johnson, 975 F.2d 5 at 610. Under Rule 15(a)(2), “a party may amend its pleading only with the opposing party’s 6 written consent or the court’s leave,” and the “court should freely give leave when justice so 7 requires.” The Ninth Circuit has considered five factors in determining whether leave to amend 8 should be given: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of 9 amendment; and (5) whether plaintiff has previously amended his complaint.” In re W. States 10 Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013) (citation omitted). 11 III. ANALYSIS 12 A. Rule 16 13 Because the scheduling order’s deadline for filing pretrial motions has passed, Plaintiff 14 must first satisfy Rule 16. (ECF No. 35 at 5.) 15 Defendants argue Plaintiff failed to diligently prosecute his case and conduct thorough 16 discovery. (ECF No. 84 at 16.) Defendants argue Plaintiff did not request the information and 17 materials he claims to have requested, nor did Plaintiff depose any Defendants. (Id.) Defendants 18 further argue Plaintiff failed to submit any public records act requests, failed to subpoena any 19 records from third parties, and failed to depose any third parties. (Id.) Defendants argue that to 20 the extent Plaintiff obtained “new” evidence from public records act requests, such evidence was 21 always available to him. (Id.) Defendant also emphasizes nearly two years has passed since the 22 magistrate judge appointed counsel and Plaintiff’s counsel could have brought this motion at any 23 point during that time. (Id.) 24 Despite Defendants’ arguments, the Court concludes Plaintiff made a sufficient showing 25 of diligence. Not only was Plaintiff originally proceeding pro se, but his discovery deadline was 26 May 2020 — during the early months of the COVID-19 pandemic. Defendants do not dispute 27 that COVID-19 restrictions in prison impeded Plaintiff’s ability to represent himself. (See ECF 28 Nos. 46, 50 (Plaintiff indicating he was unable to access the law library at his facility due to 1 COVID-19 restrictions)). Moreover, Plaintiff was not appointed counsel until November 2020, 2 long after discovery closed. (ECF No. 55.) As for Defendants’ argument that Plaintiff could 3 have filed the instant motion any time after counsel was appointed two years ago, Defendants 4 ignore that this case was effectively stayed after Defendants filed an interlocutory appeal in 5 December 2020. See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (filing of a 6 notice of appeal generally “divests the district court of its control over those aspects of the case 7 involved in the appeal”). In fact, Defendants themselves moved to stay the action pending the 8 outcome of the appeal. (ECF No. 69.) Plaintiff filed this motion shortly after the Ninth Circuit 9 issued its mandate, and less than two weeks after the Ninth Circuit denied Defendants’ motion to 10 stay the mandate pending their petition for certiorari. (Ninth Circuit Docket No. 20-17405, ECF 11 No. 44.) For all these reasons, the Court concludes that Plaintiff was diligent in filing this motion 12 based on the unique circumstances of this case. 13 Accordingly, Plaintiff has satisfied Rule 16’s good cause standard. 14 B. Rule 15 15 The Court now turns to whether Plaintiff’s motion is proper under Rule 15. Defendants 16 argue the Court should deny Plaintiff’s motion based on: (1) undue delay; (2) bad faith; (3) 17 futility; and (4) prejudice. (ECF No. 84.) The Court will address each factor in turn. 18 i. Undue Delay 19 “Relevant to evaluating the delay issue is whether the moving party knew or should have 20 known the facts and theories raised by the amendment in the original pleading.” Jackson v. Bank 21 of Haw., 902 F.2d 1385, 1388 (9th Cir. 1990). Even if Plaintiff’s delay was unreasonable, 22 “[u]ndue delay by itself . . . is insufficient to justify denying a motion to amend.” Bowles v. 23 Reade, 198 F.3d 752, 758 (9th Cir. 1999).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MASA NATHANIEL WARDEN, No. 2:19-cv-00431-TLN-AC 12 Plaintiff, 13 v. ORDER 14 BRYAN COWAN, et al, 15 Defendants. 16 17 This matter is before the Court on Plaintiff Masa Nathaniel Warden’s (“Plaintiff”) Motion 18 for Leave to File an Amended Complaint, to Amend the Scheduling Order, and to Reopen 19 Discovery. (ECF No. 83.) Defendants Bryan Cowan, Will Williams, and Nick Weaver 20 (collectively, “Defendants”) filed an opposition. (ECF No. 84.) Plaintiff filed a reply. (ECF No. 21 86.) For the reasons set forth below, the Court GRANTS in part and DENIES in part Plaintiff’s 22 motion. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 This case arises out of an incident in Redding, California on July 23, 2018, in which 3 Defendants fired shots at Plaintiff during his arrest. (ECF No. 13 at 3.) Plaintiff filed a pro se 4 prisoner complaint on February 19, 2019. (ECF No. 1.) Plaintiff filed the operative First 5 Amended Complaint (“FAC”) on April 15, 2019. (ECF No. 13.) On May 30, 2019, the 6 magistrate judge issued a screening order allowing Plaintiff to proceed with excessive force 7 claims against Defendants. (ECF No. 15.) Plaintiff subsequently filed several motions for 8 appointment of counsel, all of which the magistrate judge denied. (ECF Nos. 30, 37, 47.) 9 On January 8, 2020, the magistrate judge issued a scheduling order which required the 10 parties to complete discovery by May 8, 2020 and set a July 24, 2020 deadline for filing pretrial 11 motions. (ECF No. 35.) On July 24, 2020, Defendants filed a motion for summary judgment. 12 (ECF No. 43.) The magistrate judge issued findings and recommendations on September 18, 13 2020, recommending that Defendants’ motion for summary judgment be granted as to Williams 14 but denied as to Cowan and Weaver. (ECF No. 52.) On November 18, 2020, the magistrate 15 judge appointed counsel for Plaintiff. (ECF No. 55.) The Court adopted the findings and 16 recommendations in full on November 23, 2020. (ECF No. 56.) 17 On December 9, 2020, Defendants filed an interlocutory appeal. (ECF No. 63.) On June 18 6, 2022, the Ninth Circuit affirmed the Court’s order. (ECF No. 78.) On July 22, 2022, Plaintiff 19 — now represented by counsel — filed the instant motion for leave to add defendants, claims, 20 and allegations to his FAC. (ECF No. 83.) Plaintiff also seeks leave to amend the scheduling 21 order and to reopen discovery. (Id.) 22 II. STANDARD OF LAW 23 Granting or denying leave to amend a complaint rests in the sound discretion of the trial 24 court. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). When the Court issues a 25 scheduling order that establishes a timetable to amend the complaint, Federal Rule of Civil 26 Procedure (“Rule”) 16 governs any amendments to the complaint. Coleman v. Quaker Oats Co., 27 232 F.3d 1271, 1294 (9th Cir. 2000). To allow for amendment under Rule 16, a plaintiff must 28 show good cause for not having amended the complaint before the time specified in the 1 scheduling order. Id. The good cause standard primarily considers the diligence of the party 2 seeking the amendment. Johnson v. Mammoth Recs., Inc., 975 F.2d 604, 609 (9th Cir. 1992). 3 Even if the good cause standard is met under Rule 16, the Court has the discretion to 4 refuse amendment if it finds reasons to deny leave to amend under Rule 15(a). Johnson, 975 F.2d 5 at 610. Under Rule 15(a)(2), “a party may amend its pleading only with the opposing party’s 6 written consent or the court’s leave,” and the “court should freely give leave when justice so 7 requires.” The Ninth Circuit has considered five factors in determining whether leave to amend 8 should be given: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of 9 amendment; and (5) whether plaintiff has previously amended his complaint.” In re W. States 10 Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013) (citation omitted). 11 III. ANALYSIS 12 A. Rule 16 13 Because the scheduling order’s deadline for filing pretrial motions has passed, Plaintiff 14 must first satisfy Rule 16. (ECF No. 35 at 5.) 15 Defendants argue Plaintiff failed to diligently prosecute his case and conduct thorough 16 discovery. (ECF No. 84 at 16.) Defendants argue Plaintiff did not request the information and 17 materials he claims to have requested, nor did Plaintiff depose any Defendants. (Id.) Defendants 18 further argue Plaintiff failed to submit any public records act requests, failed to subpoena any 19 records from third parties, and failed to depose any third parties. (Id.) Defendants argue that to 20 the extent Plaintiff obtained “new” evidence from public records act requests, such evidence was 21 always available to him. (Id.) Defendant also emphasizes nearly two years has passed since the 22 magistrate judge appointed counsel and Plaintiff’s counsel could have brought this motion at any 23 point during that time. (Id.) 24 Despite Defendants’ arguments, the Court concludes Plaintiff made a sufficient showing 25 of diligence. Not only was Plaintiff originally proceeding pro se, but his discovery deadline was 26 May 2020 — during the early months of the COVID-19 pandemic. Defendants do not dispute 27 that COVID-19 restrictions in prison impeded Plaintiff’s ability to represent himself. (See ECF 28 Nos. 46, 50 (Plaintiff indicating he was unable to access the law library at his facility due to 1 COVID-19 restrictions)). Moreover, Plaintiff was not appointed counsel until November 2020, 2 long after discovery closed. (ECF No. 55.) As for Defendants’ argument that Plaintiff could 3 have filed the instant motion any time after counsel was appointed two years ago, Defendants 4 ignore that this case was effectively stayed after Defendants filed an interlocutory appeal in 5 December 2020. See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (filing of a 6 notice of appeal generally “divests the district court of its control over those aspects of the case 7 involved in the appeal”). In fact, Defendants themselves moved to stay the action pending the 8 outcome of the appeal. (ECF No. 69.) Plaintiff filed this motion shortly after the Ninth Circuit 9 issued its mandate, and less than two weeks after the Ninth Circuit denied Defendants’ motion to 10 stay the mandate pending their petition for certiorari. (Ninth Circuit Docket No. 20-17405, ECF 11 No. 44.) For all these reasons, the Court concludes that Plaintiff was diligent in filing this motion 12 based on the unique circumstances of this case. 13 Accordingly, Plaintiff has satisfied Rule 16’s good cause standard. 14 B. Rule 15 15 The Court now turns to whether Plaintiff’s motion is proper under Rule 15. Defendants 16 argue the Court should deny Plaintiff’s motion based on: (1) undue delay; (2) bad faith; (3) 17 futility; and (4) prejudice. (ECF No. 84.) The Court will address each factor in turn. 18 i. Undue Delay 19 “Relevant to evaluating the delay issue is whether the moving party knew or should have 20 known the facts and theories raised by the amendment in the original pleading.” Jackson v. Bank 21 of Haw., 902 F.2d 1385, 1388 (9th Cir. 1990). Even if Plaintiff’s delay was unreasonable, 22 “[u]ndue delay by itself . . . is insufficient to justify denying a motion to amend.” Bowles v. 23 Reade, 198 F.3d 752, 758 (9th Cir. 1999). However, as already discussed in the context of Rule 24 16, Plaintiffs’ delay was reasonable under the circumstances. 25 Therefore, this factor weighs in favor of granting leave to amend. 26 ii. Bad Faith 27 “Bad faith means acting with intent to deceive, harass, mislead or disrupt.” Richard A. 28 Leines v. Homeland Vinyl Products, Inc., No. 2:18-cv-00969-KJM-DB, 2020 WL 6044037, at *4 1 (E.D. Cal. Oct. 13, 2020) (citing Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 2006)). 2 There is bad faith when the moving party seeks leave to amend as a means “to prolong litigation 3 by adding new but baseless legal theories.” Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 4 (9th Cir. 1999). 5 Defendants argue Plaintiff is attempting to excuse his failure to diligently conduct 6 discovery by falsely accusing Defendants of concealing evidence. (ECF No. 84 at 18–21.) 7 Defendants also argue Plaintiff’s proposed amendments contain several false and misleading 8 allegations. (Id.) While the parties dispute whether Defendants concealed evidence and whether 9 Plaintiff’s new claims are viable, these issues can be resolved in future proceedings. As it is, 10 Defendants fail to persuade the Court that Plaintiff brought the instant motion in bad faith, 11 especially considering Plaintiff was pro se during the entire discovery process. 12 As such, this factor weighs in favor of granting leave to amend. 13 iii. Futility 14 When an amendment is futile, “there [is] no need to prolong litigation by permitting 15 further amendment.” Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002). A 16 proposed amendment is futile where “the pleading could not possibly be cured by the allegation 17 of other facts.” Watison v. Carter, 668 F.3d 1108, 1117 (9th Cir. 2012) (citation omitted). 18 However, denial of motions to amend on futility grounds is “rare.” Netbula, LLC v. Distinct 19 Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003). “Ordinarily, courts will defer consideration of 20 challenges to the merits of a proposed amended pleading until after leave to amend is granted and 21 the amended pleading is filed.” Id. (citation omitted). 22 Defendants argue Plaintiff’s claims are futile because he has not pleaded sufficient facts in 23 the proposed Second Amended Complaint (“SAC”) to support the new claims. (Id. at 21–23.) 24 Although Defendants correctly note that Plaintiff pleads several claims that were already 25 dismissed in the magistrate judge’s screening order — and it is unclear whether those claims 26 would survive a motion to dismiss — the Court cannot say that “the pleading could not possibly 27 be cured by the allegation of other facts.” Watison, 668 F.3d at 1117. However, there is one 28 exception: Plaintiff’s renewed excessive force claim against Williams. The Court previously 1 granted partial summary judgment in favor of Williams on this claim. (ECF No. 56.) An “order 2 granting partial summary judgment is interlocutory and not final.” Carlino v. CHG Medical 3 Staffing, Inc., No. 1:17-cv-01323-DAD-BAK, 2022 WL 5249439, at *5 (E.D. Cal. Oct. 6, 2022). 4 “Rule 54(b) . . . provides the proper vehicle for requesting reconsideration” of prior interlocutory 5 orders. Doutherd v. Montesdeoca, No. 2-17-cv-02225-KJM-JDP, 2021 WL 1784917, at *2 (E.D. 6 Cal. May 5, 2021); see also E.D. Cal. L.R. 230(j). Plaintiff has not filed a motion for 7 reconsideration and instead raises arguments as to the propriety of this claim for the first time in 8 his reply. Absent a properly noticed motion for reconsideration and further arguments as to how 9 new evidence would alter the Court’s determination, the Court DENIES Plaintiff’s request to 10 revive this claim. 11 Accordingly, for all the claims except for the excessive force claim against Williams, the 12 Court finds this factor weighs in favor of granting leave to amend. 13 iv. Prejudice 14 Prejudice is the factor that weighs most heavily in the Court’s analysis of whether to grant 15 leave to amend. Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “A 16 need to reopen discovery and therefore delay the proceedings supports a district court’s finding of 17 prejudice from a delayed motion to amend the complaint.” Lockheed Martin Corp. v. Network 18 Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999). “However, the Ninth Circuit has affirmed the grant 19 of leave to supplement even where it required reopening discovery because most of the 20 information on the added claim would be available in [defendant’s] own files and little additional 21 discovery would be needed.” Lyon v. U.S. Immigr. & Customs Enf’t, 308 F.R.D. 203, 215 (N.D. 22 Cal. 2015) (citing LaSalvia v. United Dairymen of Ariz., 804 F.2d 1113, 1119 (9th Cir. 1986)) 23 (internal quotation marks omitted). 24 Defendants argue that because Plaintiff’s proposed SAC raises seven new causes of 25 action, three new defendants, and brings back one defendant who has already been dismissed 26 from the case, Defendants will require additional written discovery, depositions, and experts. 27 (ECF No. 84 at 23–24.) Defendants argue this is prejudicial because they will have “very 28 minimal time” to conduct discovery before trial. (Id. at 24.) 1 The Court concludes any prejudice to Defendants will be minimal. Despite Defendants’ 2 contention that a trial date is looming, there is no trial date set in this case. Although reopening of 3 discovery will invariably cause some prejudice to Defendants in terms of time and expense, 4 Defendants fail to convince the Court that such prejudice outweighs all the other factors that 5 support granting leave to amend. 6 In sum, the Court finds the relevant factors weigh in favor of granting leave to amend. 7 These same factors also weigh in favor of reopening discovery. City of Pomona v. SQM N. Am. 8 Corp., 866 F.3d 1060, 1066 (9th Cir. 2017). Although there are factual disputes about whether 9 reopening discovery will lead to new evidence, the Court believes those disputes should be 10 resolved during the discovery process.1 Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 11 833 (9th Cir. 2011) (District courts have “broad discretion to manage discovery and to control the 12 course of litigation under [Rule] 16.”). 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23
24 1 Defendants also argue Plaintiff failed to comply with Local Rule 233 in moving to modify the scheduling order. (ECF No. 84 at 13.) Local Rule 233 states a party “may” bring 25 administrative matters to the Court’s attention through a motion for administrative relief. E.D. Cal. L.R. 233. As an example of a matter that can be brought as such a motion, the Local Rule 26 lists a request “to alter a discovery schedule that does not affect dispositive motion filing dates, 27 trial dates, or the final pre-trial conference.” Id. Defendants fail to persuade the Court that Local Rule 233 applies in the instant case, and the Court concludes Plaintiff properly brought his 28 motion pursuant to Rule 16. 1 IV. CONCLUSION 2 For the foregoing reasons, the Court GRANTS in part and DENIES in part Plaintiff's 3 | motion. (ECF No. 83.) Plaintiff's motion is DENIED with respect to his request to revive his 4 | excessive force claim against Williams. The motion is GRANTED in all other respects. 5 || Moreover, as Plaintiff filed this action while in custody, the matter is REFERRED to the 6 | magistrate judge pursuant to Local Rule 302(c)(17).” The parties should also notify the Court as 7 | to whether they are willing to consent to proceed before the magistrate judge for all future 8 || proceedings in this case. 9 IT IS SO ORDERED. 10 | DATE: March 10, 2023 11 ( /] 12 A Vet 13 Troy L. Nuhlep> ] 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 |, On December 1, 2020, the Court stated that due to the appointment of counsel, the case 27 | was reassigned to the district court judge. (ECF No. 59.) The Court believes this reassignment was in error, as Local Rule 302(c)(17) does not indicate that a prisoner action should be 28 | reassigned to a district judge if counsel is appointed.