The opinion of the court was delivered by: David H. Bartick United States Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION TO AMEND THE SCHEDULING ORDER AND FILE AN AMENDED ANSWER [ECF No. 24]
On August 24, 2012, Defendants filed a Motion to Amend the Scheduling Order and File an Amended Answer. (ECF No. 24.) Defendants seek leave to amend their Answer to correct an inconsistency between certain paragraphs that could be confusing to the trier of fact. Plaintiff has not filed any opposition to this motion. Based upon the failure of Plaintiff to file an opposition*fn1 and for the reasons set forth below, this Court finds good cause to GRANT Defendants' Motion to Amend the Scheduling Order and Motion to File an Amended Answer.
On September 2, 2011, Plaintiff filed a Complaint against Defendants the United States of America and Alonso Morales (collectively "Defendants"). (ECF No. 1.) On December 20, 2012, Defendants filed their Answer. (ECF No. 3.) On March 28, 2012, the Court issued a Scheduling Order setting April 30, 2012 as the deadline to file any motions to amend the pleadings. (ECF No. 18.) On August 24, 2012, Defendants filed the instant motion.
The Complaint lists several the causes of action against Defendants,
including claims for excessive force (Count One), wrongful arrest
(Count Two), and wrongful detention (Count Three). (ECF No. 1 at 3-5.)
The supporting facts for these three claims are identical.*fn2
Plaintiff alleges the following:
Plaintiff, who was crossing from Mexico into the United States at [sic] turnstile operated by Defendants, presented two forms of valid identification - a California Drivers License and a State of California Department of Corrections and Rehabilitation employee identification card. Plaintiff walked through the turnstile, but then was called back by Officer Morales, Defendant United States of America's employee, who was then acting in an official capacity as a U.S. Customs and Border Protection Officer. Plaintiff complied. Officer Morales handcuffed Plaintiff, hit Plaintiff on his back and in the back of his head, and caused Plaintiff's neck to be positioned in a manner so as to cause injury. During the entire assault and batter, Plaintiff never provoked any officer or resisted any officer. As a result of the excessive force, and the unreasonable manner in which the officer used force, Plaintiff was injured and required surgery. (ECF No. 1 at 3.)
In response to Count One, Defendants denied that Plaintiff presented two forms of identification as described in the Complaint. Specifically, Defendants answered:
Answering Paragraph (C) (Count 1) of the Complaint, Federal Defendants admit: Plaintiff walked through the turnstile at the port of entry operated by U.S. Customs and Border Protection; Officer Morales called Plaintiff back for inspection; and, Officer Morales handcuffed Plaintiff. Federal Defendants deny each, every, and all remaining allegations contained therein. (ECF No. 3 at 2, ¶ 4.) However, when Defendants answered Counts Two and Three, they admitted Plaintiff presented a California driver's license. (ECF No. 3 at 2, ¶5 and 4, ¶ 6.) On May 30, 2012, Officer Morales was deposed. He testified that Plaintiff had not shown documents to enter the United States. (ECF No. 24, Ex. C at 33:25-35:25.) Officer Morales' testimony was consistent with paragraph 4 of the Answer, but inconsistent with paragraphs 5 and 6.
Defendants state that on August 22, 2012, they became aware of the inconsistency in the Answer when Plaintiff's counsel called defense counsel, expressing confusion about the conflicting paragraphs. Defendants now seek to amend paragraphs 5 and 6 to be consistent with their answer to paragraph 4, which is also consistent with Officer Morales' testimony.*fn3
Leave to amend should be freely given "when justice so requires." Fed.R.Civ.P. 15(a)(2). In light of this liberal standard, the Court can consider the following factors: (1) undue delay, (2) bad faith, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the party has previously amended their pleading. Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051-52 (9th Cir. 2003). "Prejudice to the opposing party is the most important factor." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). See also Eminence Capital, LLC, 316 F.3d at 1052. The party opposing leave to amend bears the burden of showing prejudice. DCD Program, Ltd. V. Leighon, 833 F.2d 183, 187 (9th Cir. 1987).
However, once a court has already issued a scheduling order and the motion cutoff date has passed, amendment of the pleadings is only permitted if there is "good cause" for modification of the scheduling order. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-09 (9th Cir. 1992)). "This standard 'primarily considers the diligence of the party seeking the amendment.'" Id. Only where a party shows good cause for a ...