The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REGARDING PLAINTIFFS' MOTION FOR LEAVE TO AMEND THE COMPLAINT (Docs. 34 & 35.)
Plaintiffs Robert Morris and Michelle Morris ("Plaintiffs"), appearing pro se and proceeding in forma pauperis, filed objections to the Magistrate Judge's Findings and Recommendations of April 17, 2009. (Doc. 34.) On June 5, 2009, in the Order Adopting Findings and Recommendations, the Honorable Oliver W. Wanger construed Plaintiffs' objections or opposition to be a motion for leave to amend and remanded the matter to this Court for further consideration. (See Doc. 35 at 2.)
Fed. R. Civ. Proc. 15(a) provides that a court "should freely give leave [to amend] when justice so requires." 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). When considering a motion for leave to amend, the Ninth Circuit has summarized the factors for the court to consider as follows: (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). However, not all factors merit equal weight. Eminence Capital, LLC, v. Aspeon, 316 F.3d 1048, 1052 (9th Cir. 2003). It is the consideration of prejudice that carries the greatest weight. Id.
Granting or denial of 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). Moreover, despite the policy favoring amendment under Rule 15, where the court has already granted a plaintiff leave to amend, its discretion in deciding subsequent motions to amend is "particularly broad." Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 879 (9th Cir.1999). Leave to amend may also 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).
Plaintiffs seek to amend their complaint to state a cause of action against the City of Fresno Police Department, asserting it had "'a deliberate policy, custom, and practice . . . and that in itself was a 'moving force' behind the constitutional violation'" (Doc. 34 at 2) from which Plaintiffs suffer.
Relevant to evaluating the delay issue is "whether the moving party knew or should have known the facts and theories raised by the amendment in the original pleading." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990); see also Chodos v. West Publishing Co., 292 F.3d 992, 1003 (9th Cir. 2002) (district court did not abuse its discretion in denying a motion to amend based on undue delay where facts were available to a plaintiff before previous amendments to the complaint).
Plaintiffs have been given two previous opportunities to amend their complaint to state a cause of action against the City of Fresno or Fresno Police Department. (See Docs. 15 & 29.) Griggs v. Pace Am. Group, Inc., 170 F.3d at 879. Plaintiffs knew or should have known the facts previously. Jackson v. Bank ...