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John L. Harris Iii v. Kamala Harris

September 22, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff is proceeding without counsel in this action.*fn1 On August 30, 2011, plaintiff filed a "Motion to Amend Complaint." (Dkt. No. 11.) Plaintiff filed a "[Proposed] Second Amended Complaint" in connection therewith. (Dkt. No. 12.)*fn2

On September 15, 2011, defendants Kamala Harris, Attorney General of the State of California in her Official Capacity, and Don Hayashida, Alicia Fowler, John Jang, John Swift, Carrie Saulsberry, Artie Cooper, Kimberly Bell, Brea Noorani, Steve Wiley, and Rey Del Rio, named in their individual and official capacities (collectively, "defendants") filed a Motion to Dismiss asserting improper service of process. (Dkt. No. 15.)

Plaintiff's Motion to Amend and defendants' Motion to Dismiss are both currently pending before the court. (Dkt. Nos. 11-12, 15.) Both pending motions are resolved herein. Because oral argument would not materially aid the resolution of either pending motion (Dkt. Nos. 11-12; 15), these matters are submitted on the briefs and record without a hearing. Fed. R. Civ. P. 78(b); E.D. Local Rule 230(g).


Plaintiff filed his original complaint (Dkt. No. 1) on August 17, 2011, and his First Amended Complaint (Dkt. No. 5) on August 18, 2011. Plaintiff filed his First Amended Complaint as a matter of right pursuant to Federal Rule of Civil Procedure 15(a)(1)(B).

On August 22, 2011, plaintiff filed a "Second Amended Complaint." (Dkt. No. 7.) Because that filing constituted a third version of his pleading, and because plaintiff had not sought leave of court with respect to such a pleading, on August 24, 2011, the undersigned issued an order striking that pleading sua sponte. (Dkt. No. 9.)*fn3 Thereafter, plaintiff filed a Motion to Amend, as well as his proposed amended pleading. (Dkt. No. 11-12.)

Pursuant to the court's order of September 8, 2011 (Dkt. No. 14), on September 16, 2011, plaintiff filed a "Certificate of Service." (Dkt. No. 19.) This Certificate of Service confirms that, to date, plaintiff has only served the stricken Second Amended Complaint upon defendants. (Dkt. No. 19.) Plaintiff has also represented that "[n]o Defendant has filed an answer to the Plaintiff's stricken complaint." (Dkt. No. 11 at 4.)

Relatedly, in their Motion to Dismiss and supporting declarations, defendants explain that the only pleading they have been served with is the stricken Second Amended Complaint, and that, understandably, they "do not wish to be in the position of responding to the incorrect complaint." (Dkt. No. 15 at 4.)


Under Federal Rule of Civil Procedure 15(a)(2), "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). As plaintiff did not obtain defendants' consent regarding filing an amended pleading, his Motion to Amend requires leave of court. See id.

The Ninth Circuit Court of Appeals has pronounced that the policy favoring amendments to pleadings should be applied with "extreme liberality." See, e.g., Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir. 1991). In considering whether to grant leave to amend, courts commonly consider the following factors: "'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, [and] futility of amendment.'" Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

Although the grant of leave to amend might cause the defendants to suffer some prejudice in the form of short delay, the undersigned finds, at least at this point in the proceedings, that consideration of these factors does not warrant denying leave to amend at this time. Defendants are unlikely to be significantly prejudiced by plaintiff's amended pleading, as they have only challenged the propriety of service of process and have not yet taken the time to substantively address plaintiff's allegations.*fn4 Given that the court should freely give leave to amend when justice so requires, and given that no undue delay, bad faith or dilatory motive appears attributable to plaintiff, the undersigned grants plaintiff's Motion to Amend. (Dkt. Nos. 11-12.)

Because the undersigned grants plaintiff's Motion to Amend, plaintiff's Second Amended Complaint (Dkt. No. 12) is now the operative pleading in this action. Defendants' Motion to Dismiss for improper service of a stricken pleading (Dkt. No. 15) is denied as moot. Defendants have no obligation to address or respond to the stricken pleading with which they were served, and plaintiff must effectuate proper service of the now-operative Second Amended Complaint (Dkt. No. 12). Of course, defendants ...

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