ORDER DENYING LEAVE TO AMEND (Denying Docket # 20, 31 )
DISMISSAL WITH PREJUDICE (Granting Docket # 26)
Before the Court is the motion of Plaintiffs for leave to file a second amended complaint and the motion of Defendants to dismiss Plaintiffs' complaint as moot. The Court requested additional briefing in light of the Court's order granting leave to amend the complaint in another case, NRDC v Evans, No. C-01-0421 JL. The parties' briefs convince the Court that Plaintiffs' motion must be denied and Defendants' motion must be granted. Plaintiffs have failed to prosecute their case and in the interim the specifications have been superseded, with no action by Plaintiffs to establish a claim or involve the Court. Consequently, Plaintiffs no longer have a live controversy before this Court, amendment would be futile and prejudicial to Defendants and their complaint must be dismissed.
Plaintiffs in the case at bar are challenging the 2002 Pacific groundfish management specifications. Plaintiffs seek to add to their complaint a claim that the 2003 and 2004 specifications, which are not the subjects of their original complaint, continue to provide higher catch limits to trawl vessels over fixed-gear vessels and that this favoritism violates the Magnuson-Stevens Act. Plaintiffs contend that trawl vessels create disproportionate discard and bycatch mortality among Pacific groundfish. Plaintiffs ask the Court to find that in the case at bar, as in the NRDC v Evans case, this Court retains continuing oversight of the Defendants' implementation of the specifications.
Plaintiffs' First Claim takes issue with the limits imposed in the 2002 specifications on the catch of "Yellow Tail, Chili Pepper, Bocaccio, Canary, Ling Cod and Willow." (Pltfs' Proposed 2d Am. Compl. ¶14, 22. The Second Claim alleges that Defendant due to the small trip limits for fixed gear vessels, unlawfully failed to include limited entry fixed gear vessels in their bycatch assessment methodology. Pltfs' Prop. 2d Am. Compl. ¶ 26 Plaintiffs also ask this Court to remand the annual specifications to Defendants "with instructions to revise the specifications to comply fully with federal law."
Defendants contend that the only similarity between the two cases, the case at bar and NRDC v Evans, is that they both involve the same fishery. They claim the differences are more outstanding than the similarities.
Defendants argue that this Court should deny Plaintiffs' motion and dismiss their complaint as moot. Defendants contend Plaintiffs cannot at this late date seek a declaratory judgment from this Court with regard to the 2002 annual specifications because there is no longer a live controversy, those specifications having been superseded by the 2003 and then the 2004 specifications without any action by Plaintiffs in the interim. Defendants inform the Court they are confused by Plaintiffs' Second Claim, since it appears to implicate both the "Limited Entry Permit" and "West Coast Ground Fish observer program." Pltfs' Prop. 2d Am. Compl. ¶26. Defendants contend that to the extent Plaintiffs seek to add to their complaint a challenge to the groundfish observer program, they are barred by the applicable statute of limitations. Section 305(b) of the Magnuson-Stevens Act, 16 U.S.C. §1855(b), requires that challenges to regulations be filed within thirty days "after the date on which the regulations were promulgated." The final rule implementing the Groundfish observer program was published in the Federal Register April 24, 2001. 66 Fed. Reg. 20,613 (April 24, 2001); 50 C.F.R. §660.360.
Analysis and Conclusion re Leave to Amend
In deciding whether to permit amendment of a complaint, the Court considers five
factors: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of the
amendment; and (5) whether the plaintiff has previously amended his complaint. Nunes v
Ashcroft, 348 F.3d 815, 818 (9th Cir. 2003) ( citing Bonin v Calderon, 59 F.3d 815, 845 (9th
Cir. 1995). In the case at bar, there is no contention that Plaintiffs are acting in bad faith, but all
four other factors are present. Plaintiffs have unduly delayed both in amending their complaint
and in failing to timely prosecute their case. This failure to prosecute has allowed their case to
become moot. The resulting delay is prejudicial to Defendants and the amendment would be
futile, since the relief sought would be completely altered by the change in circumstances
since the complaint was filed two years ago.
In contrast, the plaintiffs in the NRDC v. Evans case brought their case in January 2001 and by June and July 2001 the parties were exchanging memoranda on summary judgment. This Court issued its order in August 2001, and an appeal followed. This Court later permitted plaintiffs in that case to amend their complaint to challenge successor specifications which directly pertained to rulings previously issued and still being monitored by the Court. Plaintiffs sought to amend allegations challenging the successor specifications and filed their papers within the statutory time limits under the Magnuson-Stevens Act, even moving for an accelerated briefing schedule in recognition of those limits. Following summary judgment for plaintiffs, this Court had expressly retained jurisdiction and subsequently granted plaintiffs leave to amend their complaint to state a cause of action for alleged violation of the successor specifications on the basis that this Court had retained jurisdiction for the purpose of enforcing its judgment and that the successor specifications were at least partially in response to the Court's order:
"Defendants themselves acknowledge that Amendment 16 was drafted in response to
this Court's August 2001 ruling in this case. See Letter from D. Robert Lohn, Regional
Administrator, NMFS to Donald Hansen, Chair, Pacific Fishery Management Council
(November 14, 2003) (Exhibit A to Plaintiffs' Motion for Leave to Amend Complaint)
("Amendment 16-1 is also intended to partially respond to a Court order in Natural
Resources Defense Council, Inc. V. Evans, 168 F.Supp.2d 1149 (N.D.Cal. 2001), in
which the court determined that Pacific Coast groundfish rebuilding plans must be in
the form of FMP's, FMP amendments or regulations.") 69 Fed.Reg. at 8,862 (same)."
(Docket # 95, order filed May 12, 2004, at pages 4-5)
This Court granted plaintiffs in the NRDC v Evans case leave to amend their complaint on the following narrow basis:
"1. A party need not file a new lawsuit to obtain judicial review of a regulation proposed by an agency in response to the Court's remand under the provisions of the ...