The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
On November 12, 2008, Plaintiffs filed the instant joint motion for leave to file a second amended complaint. The matter was heard on December 19, 2008, before the Honorable Dennis L. Beck, United States Magistrate Judge. Barrett Litt and Donald Cook appeared on behalf of Plaintiffs. Jennifer Thurston and Terence Cassidy appeared on behalf of Defendants Kern County, the Kern County Sheriff's Office, Sheriff Donny Youngblood (individually and in his official capacity) and Former Sheriff Mack Wimbish (individually) ("Defendants").
Plaintiff Marsial Lopez, individually and as class representative, filed the instant civil rights action on March 27, 2007. On June 21, 2007, Plaintiffs Marsial Lopez, Sandra Chavez, and Theodore Medina, individually and as class representatives, filed a First Amended Complaint ("FAC") against Kern County, the Kern County Sheriff's Department, Kern County Sheriff Donny Youngblood (officially and individually) and former Kern County Sheriff Mack Wimbish (individually). Plaintiffs seek injunctive relief and damages resulting from the strip and/or visual body cavity searches of prisoners by the Kern County Sheriff's Department.
The FAC contains six causes of action: (1) damages pursuant to 42 U.S.C. § 1983 premised on unreasonable searches and seizures in violation of the Fourth and Fourteenth Amendments of the U.S. Constitution; (2) damages pursuant to 42 U.S.C. § 1983 premised on violation Fourteenth Amendment equal protection guarantees; (3) violation of their equal protection rights pursuant to Article I, § 7 of the California Constitution and unreasonable search and seizure in violation of Article I, § 13 of the California Constitution; (4) damages pursuant to California Civil Code § 52.1(b) and § 52(b) premised on violations of their rights under the Fourth, Eighth and Fourteenth Amendments, Article I, §§ 1, 7, 13 and 17 of the California Constitution, and California Penal Code § 4030; (5) violation of California Penal Code § 4030; and (6) violation of mandatory duties under California Government Code § 815.6.
On November 12, 2008, Plaintiffs filed the instant motion for leave to file a second amended complaint.*fn1 Plaintiffs seek to add a seventh cause of action under Article I, §1 of the California Constitution for violations of their privacy rights. Plaintiffs argue that the proposed cause of action was "mistakenly omitted" from the original complaint.
Defendants filed a joint opposition on December 2, 2008. Plaintiffs filed a reply on December 5, 2008.
Federal Rule of Civil Procedure Rule 15(a) provides that the court "should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). The United States Supreme Court has stated:
[i]n the absence of any apparent or declared reason -- such as 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, futility of amendment, etc. -- the leave sought should, as the rules require, be "freely given."
Foman v. Davis, 371 U.S. 178, 182 (1962). The Ninth Circuit has summarized these factors to include the following: (1) undue delay; (2) bad faith; (3) prejudice to the opponent; and (4) futility of amendment. Loehr v. Ventura County Cmty. Coll. Dist., 743 F.2d 1310, 1319 (9th Cir. 1984). Leave to amend rests in the sound discretion of the trial court. Swanson v. United States Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). Despite the policy favoring amendment under Rule 15, leave to amend may be denied if the proposed amendment is futile or would be subject to dismissal. Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991).
Defendants object to the proposed amendment on two grounds: (1) prejudice and (2) futility. To demonstrate prejudice, Defendants point out that the instant motion follows the filing of dispositive motions. Defendants contend that Plaintiffs attempted to assert this new claim in their Opposition to Defendants first motion for summary adjudication regarding strip searches. Defendants noted this impropriety in their reply of October 3, 2008. Defendants then filed a second summary adjudication motion on November 7, 2008, regarding qualified immunity, Eleventh Amendment immunity and court returnees. Defendants argue that Plaintiffs did not seek to amend their complaint until November 12, 2008, "some six weeks after Defendants first called attention to their omission and after two dispositive motions were filed." (Defs.' Joint Opp. to Plaintiffs' Mot. to Amend Complaint 2).
Defendants argue that the delay and related expense constitute prejudice, citing Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985) and Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999). Defendants citations are not instructive. In Ansam, the court upheld the denial of leave to amend due to prejudice associated with the close of discovery and the filing of a motion for summary judgment. However, the proposed claims in Ansam involved an entirely new set of operative facts, a different period of time and a different statute from the operative pleading. Id. at 446. Here, Plaintiffs propose to add a claim regarding the right to privacy under the California Constitution. This claim does not involve a new set of facts, a different time period or even a different statute from the operative ...