The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the motion for leave to amend the complaint (Doc. # 32) filed by Plaintiff Sergio Lopez.
On July 13, 2007, Plaintiff Sergio Lopez filed a complaint (Doc. # 1) against the Chula Vista Police Department, the City of Chula Vista, Richard Emerson, D. Clark, G. Armstrong, D. Martinez, Sergeant Guthrie, and Sergeant Fobes. On November 6, 2007, Plaintiff filed a first amended complaint (Doc. # 3) against Defendants for (1) false arrest, (2) excessive force, (3) failure to properly screen and hire, (4) failure to train, (5) failure to supervise and discipline, (6) Monell liability for a pattern of brutality, (7) Monell liability for failure to properly investigate complaint, (8) assault and battery, (9) intentional infliction of emotional distress, and (1) violation of the UNRUH Act pursuant to California Civil Code § 52.1. (Doc. # 3). On December 13, 2007, Defendants filed an answer (Doc. # 17) to the amended complaint. On February 25, 2008, the Magistrate Judge held a case management conference with the parties pursuant to Rule 16 of the Federal Rules of Civil Procedure. (Doc # 23). The Magistrate Judge issued a case management conference order regulating discovery and setting a March 31, 2008 deadline for filing any motion to amend the pleadings or to file additional pleadings. (Doc. # 22). The order stated that "the dates and times set forth herein will not be modified except for good cause shown." (Doc. # 22 at 8).
On May 23, 2008, the parties filed a joint motion for an extension of time to complete discovery. (Doc. # 24). The Magistrate Judge granted the motion, ordering discovery to be completed by October 17, 2008. (Doc. # 25). On August 7, 2008, the parties filed a second joint motion for an extension of time to complete discovery. (Doc. 27). The Magistrate Judge granted the motion, ordering all fact discovery to be completed by October 24, 2008, and all expert discovery to be completed by November 7, 2008. (Doc. # 29). On September 18, 2008, Plaintiff filed a motion for leave to amend the complaint. (Doc. # 32). On October 14, 2008, Defendants filed a response in opposition to the motion to amend the complaint. (Doc. # 39). On October 20, 2008, Plaintiff filed a reply in support of the motion to amend the complaint. (Doc. # 45).
Plaintiff moves for leave to amend the complaint by adding a negligence cause of action pursuant to Fed. R. Civ. P. 15(a). (Doc. # 32 at 3). Plaintiff explains that on September 11, 2008, Chula Vista Police Chief Emerson gave deposition testimony regarding certain facts which Plaintiff believes could give rise to a negligence cause of action.
Defendants oppose leave to amend and in the alternative, request the Court to extend the time for discovery to permit Defendants adequate opportunity to engage in discovery relating to a cause of action for negligence. (Doc. # 39). Defendants contend that the deadline for amending pleadings expired on March 31, 2008 and that the liberal standard for allowing amendments to pleadings under Rule 15(a) no longer applies. Defendants assert that this Court may only allow Plaintiff to amend the complaint upon a showing of good cause pursuant to Fed. R. Civ. P. § 16.
Defendants assert that they will be severely prejudiced as they will have been denied the opportunity to engage in discovery and prepare a defense to the alleged negligence. Defendants further contend that adding a cause of action for negligence would be futile because Defendants are government entitles and government employees and are immune from negligence pursuant to Government Code § 815.
Although Plaintiff has not expressly moved for a modification under Rule 16(b), the Plaintiff's motion for leave to amend the complaint impliedly requires this Court to modify the March 31, 2008 deadline provided in the scheduling order. A party seeking leave to amend the complaint after the date specified in the scheduling order "must first show good cause for amendment under Rule 16(b), then if good cause be shown, the party must demonstrate that amendment was proper under Rule 15." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992) (citations omitted); Fed. R. Civ. P. 16(b)(4); see also Doc. # 22 (scheduling order stating that dates may be modified for "good cause"). Good cause exits when the pretrial schedule "cannot be reasonably met despite the diligence of the party seeking the extension." Johnson, 975 F.2d at 609. In this case, the facts giving rise to a potential negligence cause of action were discovered during the September 10, 2008 deposition of Police Chief Richard P. Emerson (Doc. # 45-4). Plaintiff filed the motion for leave to amend the complaint to add a negligence claim on September 18, 2008. The deposition was taken well before the October 24, 2008 discovery cutoff date. The Court concludes that Plaintiff has made a sufficient showing of good cause under Rule 16(b) to modify the March 31, 2008 deadline to amend his complaint.
Rule 15 of the Federal Rules of Civil Procedure mandates that leave to amend "be freely given when justice so requires." Fed. R. Civ. P. 15(a). This policy is applied with "extraordinary liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Once an answer to the complaint has been filed, "leave to amend should be granted as unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay." Johnson, 975 F.2d at 607.
In this case, the motion for leave to amend the complaint to add a negligence claim was filed by Plaintiff eight days after discovering the relevant facts. Plaintiff states that he "will agree unilaterally to permit additional depositions, answer additional interrogatories, or produce additional documents of any kind, bearing upon plaintiff's claim of negligence." (Doc. # 25 at 3). Further, the final pre-trial conference is not scheduled to take place until March 23, 2009. Allowing Plaintiff to file a second amended complaint will not create undue delay and will not unduly prejudice the Defendants. The Court cannot conclude that the proposed amendments would be futile based on the pleadings or that Plaintiff is proceeding in bad faith.
IT IS HEREBY ORDERED that the motion for leave to amend the complaint (Doc. # 32) filed by Plaintiff is GRANTED. Plaintiff shall file the Second Amended Complaint specifically set forth in ...