The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
This civil rights action is proceeding on plaintiff's April 20, 2009 amended complaint alleging deputies in the Sacramento County Jail used excessive force on plaintiff while searching plaintiff for contraband during "sergeant's court" on January 19, 2005. (Dkt. No. 18.)
On August 23, 2010, plaintiff filed a motion to file a second amended complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, accompanied by a proposed second amended complaint, and a request for appointment of counsel.*fn1 Defendants oppose the motion, arguing plaintiff has failed to show good cause as required by Rule 16(b)(4) of the Federal Rules of Civil Procedure. Defendants contend Rule 16 applies because the court has issued a scheduling order in this case.
A. Standards for a Motion to Amend
Federal Rule of Civil Procedure 15(a) is to be applied liberally in favor of amendments and, in general, leave shall be freely given when justice so requires. See Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994). However, because a pretrial scheduling order has been filed in this action, resolution of this motion to amend is governed by Rule 16 of the Federal Rules of Civil Procedure. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). "Once the district court filed a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16 . . . that rule's standards controlled." Id. Rule 16(b) provides that "[a] schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. Proc. 16(b)(4). The scheduling order in this case was filed on May 11, 2010. (Dkt. No. 61.) Therefore, the court considers the present motion under the Rule 16 standard for amendment and secondarily under the standard of Rule 15(a). See Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999).
While amendment of pleadings is ordinarily liberally granted under Federal Rule of Civil Procedure 15(a), a movant must demonstrate "good cause" to justify amendment under Federal Rule of Civil Procedure 16(b). Johnson, 975 F.2d at 606-07. The "good cause" standard "focuses on the diligence of the party seeking amendment." Id. at 607 (citing Johnson, 975 F.2d at 609). The district court may modify the pretrial schedule if it cannot reasonably be met despite the diligence of the party seeking the extension." Johnson, 975 F.2d at 609 (internal quotation marks omitted). "If the party seeking the modification was not diligent, the inquiry should end and the motion to modify should not be granted." Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (internal quotation marks omitted). In addition to a lack of diligence, "prejudice to the party opposing the modification" may supply additional reasons to deny modification. Johnson, 975 F.2d 609.
In order to demonstrate diligence, plaintiff must show whether he collaborated with the court in setting a schedule; whether matters that were not, and could not have been, foreseeable at the time of the scheduling conference caused the need for amendment; and whether the movant was diligent in seeking amendment once the need to amend became apparent. Id. at 608 (citations omitted). "[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Johnson, 975 F.2d at 609. However, the district court is given broad discretion under Rule 16. Id. at 607.
Therefore, in interpreting the "good cause" requirement under Federal Rule of Civil Procedure 16(b), the court considers, primarily, "the diligence of the party seeking the amendment." Johnson, 975 F.2d at 609. As a secondary consideration, the court considers the degree of prejudice to the opposing party. Id.
In the instant motion, plaintiff has failed to address good cause or diligence. Rather, plaintiff's states only that the "second amended complaint establishes names, dates and incidents wherein amending his first complaint would serve the interests of justice." (Dkt. No. 74 at 1.) However, review of the proposed second amended complaint reveals plaintiff is attempting to add 32 new defendants, and allegations concerning nine different incidents during 2005, unrelated to the alleged excessive force incident at issue here. Plaintiff has not included any allegations concerning an alleged use of excessive force on January 19, 2005, which was the date of incident alleged in plaintiff's April 20, 2009 amended complaint, and reaffirmed in plaintiff's declaration filed February 4, 2010 ("To the best of plaintiff's recollection the events occurred on or about January 19, 2005.") (Dkt. No. 39 at 3.) Plaintiff has failed to demonstrate his diligence in bringing these stale claims involving incidents that occurred in 2005, over five years later. Therefore, plaintiff's motion should be denied under Rule 16(b) of the Federal Rules of Civil Procedure.
Alternatively, analyzing plaintiff's motion to amend under Rule 15(a) of the Federal Rules of Civil Procedure, plaintiff's motion should also be denied. Courts "need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile." Id. The factor of "[u]ndue delay by itself . . . is insufficient to justify denying a motion to amend." Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712,13 (9th Cir. 2001) (citation omitted).
First, the 32 defendants plaintiff seeks to add would be prejudiced if the court allowed plaintiff to add them as defendants at this late date, particularly because plaintiff has not associated any of these defendants with the events of January 19, 2005. The appearing defendants would also be prejudiced by the delay such an amendment would cause. The addition of nine unrelated claims would also prejudice the defendants. Second, while it does not appear plaintiff necessarily is acting in bad faith in bringing this second amended complaint, plaintiff has failed to explain his lack of diligence in bringing the motion. Third, allowing plaintiff to file the proposed second amended complaint, adding 32 new defendants and nine new claims, would certainly delay the litigation and would unnecessarily complicate it as well. At present, this case is proceeding on one incident of alleged excessive force that occurred on January 19, 2005. Finally, allowing plaintiff to file the proposed second amended complaint would be futile. As noted by defendants, the second amended complaint fails to comply with Rule 8 of the Federal Rules of Civil Procedure. (Dkt. No. 78 at 6.) Also, plaintiff seeks to improperly join unrelated incidents spanning July 7, May 31, April 15, April 11, April 8, April 4, March 21, March 1, and February 28 of 2005, against multiple defendants, involving different legal issues, in violation of Rules 18(a) and 20 of the Federal Rules of Civil Procedure. See also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
The proposed new claims are also futile because they are now time-barred. California law determines the applicable statute of limitations in this § 1983 action. See Wilson v. Garcia, 471 U.S. 261 (1985). Until December 31, 2002, the applicable state limitations period was one year. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (citing Cal. Civ. Proc. Code § 340(3); see also Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004).*fn2 Effective January 1, 2003, the applicable California statute of limitations was extended to two years. See Jones, 393 F.3d at 927 (citing Cal. Civ. Proc. Code § 335.1). California law also tolls for two years the limitations ...