The opinion of the court was delivered by: Honorable William Q. Hayes U.S. District Judge
ORDER GRANTING MOTION FOR LEAVE TO AMEND COMPLAINT AND DENYING MOTION FOR CONTINUANCE [Doc. No. 18]
On April 30, 2008, Plaintiff, who is proceeding pro se and in forma pauperis with a Complaint brought pursuant to 42 U.S.C. § 1983, moved for leave to amend his Complaint. Doc. No. 18. In the same motion, Plaintiff also requests that the Court continue certain dates set forth in the Court's April 17, 2008 scheduling order. Id.
The Court issued a briefing schedule for Plaintiff's motion on May 13, 2008. Doc. No. 22. Defendants did not oppose by the deadline set forth in the briefing schedule and the Court took the motion under submission pursuant to Civil Local Rule 7.1(d)(1).
Having reviewed the briefing submitted, and for the reasons set forth below, Plaintiff's motion to amend his Complaint is GRANTED and his motion to modify the Court's April 17, 2008 scheduling order is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
In his Complaint, Plaintiff alleges that San Diego Police Officers Wilson and Tagaban used excessive force prior to arresting him in violation of his constitutional rights. Doc. No. 1. He further alleges that San Diego Police Sergeant Griffin and Detective Lemus were "integral participants" in the allegedly unlawful beating because they witnessed it but did nothing to intervene. Id. at 2, 4. Plaintiff sues all four officers in both their individual and official capacities. Id. at 2. He seeks $635,000.00 in compensatory damages and $225,000.00 in punitive damages. Id. at 7.
Officers Griffin and Tagaban jointly filed an Answer to the Complaint on April 15, 2008. Doc. No. 8. Detective Lemus answered the Complaint on May 27, 2008. Doc. No. 23. It does not appear from the docket that Plaintiff has yet succeeded in serving Defendant Wilson.
Doc. Nos. 7 & 15 (summons twice returned unexecuted).
Leave to Amend the Pleadings Pursuant to Rule 15 of the Federal Rules of Civil Procedure, a party may amend its pleading after the opposing party has served a responsive pleading "only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Upon motion to the court, "[t]he court should freely give leave when justice so requires."
"This policy is 'to be applied with extreme liberality.'" Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)).
The decision of whether to grant leave to amend nevertheless remains within the discretion of the district court, which may deny leave to amend due to "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962). In assessing these factors, the consideration of prejudice should carry the greatest weight. Eminence Capital, 316 F.3d at 1052.
Modifying the Scheduling Order
Dates set in a scheduling order may be modified "for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4); Doc. No. 11 (scheduling order stating that dates may be modified for "good cause"). The Rule 16 "good cause" standard focuses on the "reasonable diligence" of the moving party. Noyes v. Kelly Services, 488 F.3d 1163, 1174 n.6 (9th Cir. 2007); Coleman v. Quaker Oats Company, 232 F.3d 1271, 1294 (9th Cir. 2000) (Rule 16(b) scheduling order may be modified for "good cause" based primarily on diligence of moving party). However, a court may also consider ...