This case, in which plaintiff is proceeding pro se and in forma pauperis, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On May 10, 2010, plaintiff filed a complaint in this action.*fn1 Dckt. No. 1. Defendant Placer County Sheriff's Department filed an answer thereto on August 9, 2010, and defendant Zender filed an answer thereto on October 1, 2010. Dckt. Nos. 11, 17.
On November 5, 2010, plaintiff filed a motion to attach to the complaint a cause of action for an intentional tort. Dckt. No. 18. Then, on November 8, 2010, plaintiff filed a motion to attach to the complaint an amended cause of action for an intentional tort. Dckt. No. 19. Plaintiff contends that "defendant made plaintiff aware that the cause of action was not included with the initiating complaint." Id.
In light of plaintiff's November 8 motion, Dckt. No. 18, plaintiff's November 5 motion is deemed withdrawn. Further, plaintiff's November 8 motion is construed as a motion to amend plaintiff's complaint pursuant to Federal Rule of Civil Procedure 15.
Effective December 1, 2009, Rule 15(a)(1) provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier."*fn2 Because defendants filed answers to plaintiff's complaint on August 9, 2010 and October 1, 2010, plaintiff's opportunity to amend "as a matter of course" has expired.
Nonetheless, Rule 15(a)(2) provides that "[i]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). The policy of freely granting leave to amend should be applied with "extreme liberality." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). When determining whether to grant leave to amend under Rule 15(a), a court should consider the following factors: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). According to the Ninth Circuit, "the crucial factor is the resulting prejudice to the opposing party," and the burden of showing that prejudice is on the party opposing amendment. Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); DCD Programs, 833 F.2d at 187. Granting or denying leave to amend rests in the sound discretion of the trial court, and will be reversed only for abuse of discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996).
Although it appears that plaintiff's original complaint already includes a cause of action for intentional tort, the allegations in plaintiff's proposed amended cause of action for intentional tort vary slightly from the allegations in plaintiff's original complaint. There is no indication that plaintiff, who is appearing pro se, unduly delayed in requesting leave to amend or that the request is made in bad faith. Further, the court cannot say at this time that amendment would be futile, and although defendants have already answered plaintiff's original complaint, because plaintiff's proposed amendments to the complaint are relatively minor, defendants have completed little work that would be disturbed by granting plaintiff leave to file an amended complaint. The burden of showing prejudice is upon the party opposing the amendment and defendants cannot carry this burden. Accordingly, plaintiff's request to amend the complaint will be granted. See Duong-Tran v. Kaiser Found. Health Plan of the N.W., 2008 WL 1909221, at *4-5 (D. Or. Apr. 28, 2008).
Plaintiff will be given fourteen days within which to file an amended complaint that includes all of plaintiff's proposed allegations. Plaintiff is informed that the court cannot refer to prior pleadings in order to make an amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once plaintiff files an amended complaint, the original no longer serves any function in the case. Therefore, "a plaintiff waives all causes of action alleged in the original complaint which are not alleged in the amended complaint," London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's November 5 motion, Dckt. No. 18, is deemed withdrawn;
2. Plaintiff's November 8 motion, Dckt. No. 19, is construed as a motion to amend plaintiff's complaint and is granted;
3. Plaintiff has fourteen days from the date this order is filed to file an amended complaint, as provided herein;*fn3
4. Defendants shall have fourteen days from the date any amended complaint is served upon them to respond to that amended complaint;
5. The December 8, 2010 status (pretrial scheduling) conference, Dckt. No. 15, is continued to January 12, 2011 at 10:00 a.m. in Courtroom No. 24; and
6. On or before December 29, 2010, the parties shall file a joint status report addressing the matters referenced in ...