IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 8, 2011
WILLIAM R. CROSBY, PLAINTIFF,
THE COUNTY OF MONO, ET AL., DEFENDANTS.
On August 5, 2011, defendants moved to dismiss plaintiff's complaint. (ECF 11; ECF 13.) Subsequent to the motions, plaintiff retained counsel. (ECF 14.) Plaintiff's opposition to defendants' motions consists solely of a request for leave to amend the complaint. (ECF 15.)
Federal Rule of Civil Procedure 15(a)(2) provides "[t]he court should freely give leave [to amend its pleading] when justice so requires" and the Ninth Circuit has "stressed Rule 15's policy of favoring amendments." Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). "In exercising its discretion [regarding granting or denying leave to amend] 'a court must be guided by the underlying purpose of Rule 15 -- to facilitate decision on the merits rather than on the pleadings or technicalities.'" DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). However, "the liberality in granting leave to amend is subject to several limitations.
Leave need not be granted where the amendment of the complaint would cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue delay." Ascon Properties, 866 F.2d at 1160 (internal citations omitted). In addition, a court should look to whether the plaintiff has previously amended the complaint, as "the district court's discretion is especially broad 'where the court has already given a plaintiff one or more opportunities to amend [its] complaint.'" Id. at 1161 (quoting Leighton, 833 F.2d at 186 n.3).
Here, plaintiff requests leave to amend so that his counsel retained since the motions to dismiss were filed may be given the chance to improve the legal sufficiency of the pleadings in the complaint. Given that the original complaint was filed by plaintiff when he was representing himself, the court is prepared to give plaintiff this opportunity. Plaintiff's counsel is directed to review the defense motions to dismiss, and to meet and confer with defense counsel, before filing an amended complaint. Any amended complaint shall comply with Federal Rule of Civil Procedure 11. Plaintiff is granted twenty days from the date of this order to file an amended complaint. Defendants' motions (ECF 11; ECF 13) are denied as moot but without prejudice.
IT IS SO ORDERED.
© 1992-2011 VersusLaw Inc.