Zawacky v. County of Clark

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 SUSAN ZAWACKY et al., CASE NO. 3:22-cv-05101-DGE 11 Plaintiffs, ORDER DENYING MOTION FOR 12 v. LEAVE TO AMEND COMPLAINT (DKT. NO. 52) 13 CLARK COUNTY et al., 14 Defendants. 15

16 This matter comes before the Court on Plaintiffs’ motion for leave to amend their 17 complaint (Dkt. No. 52). The Court finds that leave to amend is inappropriate and DENIES 18 Plaintiffs’ motion. 19 Plaintiffs filed their initial complaint on February 17, 2022. (Dkt. No. 1.) Defendants 20 filed their answer to the complaint on May 13, 2022. (Dkt. No. 12.) On February 2, 2023, 21 Plaintiffs filed a motion seeking leave to amend their complaint to add state and federal racial 22 discrimination claims. (Dkt. No. 52.) Defendants filed a response in opposition to the motion on 23 February 9, 2023. 24 1 Leave to amend should be freely given “when justice so requires.” Fed. R. Civ. P. 2 15(a)(2). “In determining whether leave to amend is appropriate, the district court considers ‘the 3 presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or 4 futility.”’ Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting

5 Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir.1999)). 6 Plaintiffs argue leave to amend should be granted because Defendants will not be 7 prejudiced by the filing of the complaint. (Dkt. No. 52 at 3.) Defendants, in response, argue 8 Plaintiffs’ amendments are futile since they do not allege any new facts that would provide a 9 plausible claim for racial bias. (Dkt. No. 55 at 4–5.) Defendants also argue leave to amend 10 would be prejudicial because of Plaintiffs’ undue delay in filing this motion. (Id. at 6–7.) 11 The Court agrees with Defendants that an attempt to amend the complaint this late into 12 the case would prejudice Defendants. As the Ninth Circuit has noted: 13 In assessing timeliness, we do not merely ask whether a motion was filed within the period of time allotted by the district court in a Rule 16 scheduling order. Rather, 14 in evaluating undue delay, we also inquire “whether the moving party knew or should have known the facts and theories raised by the amendment in the original 15 pleading.”

16 AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 953 (9th Cir. 2006). Plaintiffs 17 filed this motion nearly a year after the filing of their initial complaint and the primary reason for 18 the addition of these claims appears to be the engagement of new counsel. (See Dkt. No. 52-1 at 19 2) (noting that the motion for leave to add additional claims was based upon new counsel’s 20 “review of the case materials to date, and the discovery available thus far.”) Furthermore, 21 Plaintiffs asserts “Defendants were on notice of the underlying factual allegation in the original 22 complaint.” (Dkt. No. 59 at 9) (emphasis added.) But on the same logic, factual allegations 23 sufficient to provide Defendants with notice of a potential racial bias claim were also available to 24 1 Plaintiffs at the time of filing. Waiting over a year to file these allegations, which Plaintiffs 2 should have been aware of at the time of filing, clearly constitutes undue delay. See 3 AmerisourceBergen Corp., 465 F.3d at 953 (noting that “an eight month delay between the time 4 of obtaining a relevant fact and seeking a leave to amend is unreasonable.”); see also Acri v. Int’l

5 Ass’n of Machinists & Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir. 1986) (“[L]ate 6 amendments to assert new theories are not reviewed favorably when the facts and the theory 7 have been known to the party seeking amendment since the inception of the cause of action.”). 8 Accordingly, and having considered Plaintiffs’ motion (Dkt. No. 52), the briefing of the 9 parties, and the remainder of the record, the Court finds and ORDERS that Plaintiffs’ motion is 11 Dated this 24th day of February, 2023. 12 A 13 David G. Estudillo 14 United States District Judge

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