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 August 17, 2012, defendants filed a motion to dismiss plaintiff's complaint, and noticed the motion for hearing on October 3, 2012. Dckt. No. 19. Plaintiff originally requested to strike the motion as untimely. Dckt. No. 26. On September 24, 2012, the court denied that request but, in light of plaintiff's pro se status, continued the hearing on the motion to dismiss to November 21, 2012 to give plaintiff an opportunity to file an opposition addressing the arguments set forth in the motion to dismiss. Dckt. No. 27.
On November 7, 2012, rather than filing an opposition addressing the arguments set forth in the motion to dismiss, plaintiff filed a document that purports to clarify the allegations in his complaint. Dckt. No. 28. The document also requests leave to amend if the court "disagrees with [plaintiff's] position." Id. at 7. The court construes plaintiff's November 7 filing as a motion to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a)(2).
Rule 15(a)(2) provides that in all cases where a party does not have an automatic right to amend, "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).
Here, there is no indication that plaintiff, who is appearing pro se,
unduly delayed in seeking to amend his complaint or that his November
7 response to the motion to dismiss was filed in bad faith. In fact,
the November 7 document was filed within the time prescribed for
filing a revised opposition to defendants' motion to dismiss. Further,
the court cannot say at this time that amendment would be futile.
Additionally, although defendants have already filed a motion to
dismiss the original complaint, if plaintiff's amended complaint
suffers from the same failures that defendants contend the original
complaint does, defendants can move to dismiss the
amended complaint on similar grounds. Therefore, defendants have
completed little or no work that would be disturbed by granting
plaintiffs leave to file their amended complaint. The burden of
showing prejudice is upon the party opposing the amendment and
defendants cannot carry this burden. Accordingly, plaintiff will be
granted an opportunity to file an amended complaint.*fn1
See Duong-Tran v. Kaiser Found. Health Plan of the N.W., 2008
WL 1909221, at *4-5 (D. Or. Apr. 28, 2008).
As a result, defendants' motion to dismiss, Dckt. No. 19, will be denied as moot. Plaintiffs' amended complaint will supersede the earlier complaint which that motion seeks to dismiss, rendering the earlier complaint of no legal effect and the motion to dismiss moot. See Ramirez v. Silgan Containers, 2007 WL 1241829, at *6 (Apr. 26, 2007).
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's November 7, 2012 filing, Dckt. No. 28, is construed as a motion to amend the complaint and that motion is granted.
2. On or before December 3, 2012, plaintiff shall file an amended complaint containing all of plaintiff's factual allegations and purported causes of action. That complaint shall be labeled plaintiff's "First Amended Complaint."
3. Defendants' motion to dismiss, Dckt. No. 19, is denied as moot and the November 21, 2012 hearing thereon is vacated.
4. Defendants shall file a response to plaintiff's amended complaint within the time prescribed in the Federal Rules of Civil Procedure.
5. Failure to file an amended complaint within the time prescribed herein may result in a recommendation that this action be dismissed for failure to prosecute and/or for failure to comply with this court's orders. See Fed. R. Civ. P. 41(b); E.D. Cal. L.R. 110.
6. The January 16, 2013 status (pretrial scheduling) conference, see Dckt. Nos. 5, 10 and 24, is continued to March 27, 2013 at 10:00 a.m. before the undersigned.
7. On or before March 13, 2013, the parties shall file status reports as provided in ...