The opinion of the court was delivered by: Hayes, Judge
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
Pending before the Court is Plaintiff's motion for leave to file a Second Amended Complaint. (Doc. # 52).
On March 12, 2004, Plaintiff Robert Mitchell filed the Complaint in this case. (Doc. # 1). The Complaint (Doc. # 1) asserted claims for retaliation, access to the courts, violation of Plaintiff's right to equal protection, negligence, and "torts in essence" against Defendants Branham and Guthrie, among others. (Doc. # 1).
On August 22, 2006, Plaintiff filed a First Amended Complaint. (Doc. # 40). The First Amended Complaint asserted claims for retaliation, equal protection, and negligence against Defendants Branham and Guthrie. (Doc. # 40). On September 7, 2006, Defendants moved to dismiss the First Amended Complaint. (Doc. # 41). On May 25, 2007, the Court granted in part and denied in part Defendants' motion to dismiss. (Docs. # 46, 47). The Court granted the motion to dismiss with respect to Plaintiff's equal protection claim, but denied the motion to dismiss with respect to Plaintiff's claims for retaliation and negligence. (Docs. # 46, 47).
On June 8, 2007, Defendants filed an answer to the First Amended Complaint. (Doc. # 48). On August 6, 2007, Plaintiff filed the pending motion for leave to file a Second Amended Complaint. (Doc. # 52).
Plaintiff seeks leave to file a Second Amended Complaint "for the sole purpose of providing the Court and all parties clear and concise causes of action." (Doc. # 52-1 at 3). In the Second Amended Complaint, Plaintiff drops his claim for negligence and substitutes in its place a claim for violation of Plaintiff's right to due process. Plaintiff states that "[j]ustice requires" the Court to allow Plaintiff to file a Second Amended Complaint. (Doc. # 52-1 at 3).
Defendants oppose the motion on the grounds that the filing of the Second Amended Complaint would prejudice Defendants. Defendants also note that Plaintiff has unduly delayed in filing this motion, and that the amendment to add a due process claim is futile.
After the defendant has filed an answer, a plaintiff may amend a complaint only with "leave of court or by written consent of the adverse party." FED. R. CIV. P. 15(a). Leave to amend shall be "freely given when justice so requires." FED. R. CIV. P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182 (1962).
"Four factors are commonly used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment." DCD Programs v. Leighton, 833 F.2d 183, 186 (9th Cir.1987) (citations omitted). Courts also consider whether discovery has ended, whether the plaintiff has previously been given the opportunity to amend, and whether the facts or theories upon which the sought-after amendment is based were known to the plaintiff previously. Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994). The decision to grant leave to amend is "one that rests in the sound discretion of the trial court." Bovarie v. Woodford, 06CV687 BEN (NLS), 2006 U.S. Dist. LEXIS 82203, *6 (S.D. Cal. Nov. 9, 2006).
II. Whether the Court Should Grant Leave To Amend
Plaintiff filed the original Complaint in this matter more than three-and-a-half years ago, and now seeks to add a claim for due process. Plaintiff cites almost no law in support of the motion, but notes that justice requires that the Court allow Plaintiff leave to amend. Defendants contend that the motion for leave to file a Second Amended Complaint should be ...