The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is the Motion to Amend Complaint. (ECF No. 35).
On April 4, 2012, Plaintiff initiated this action by filing a Complaint against Defendant in this Court. (ECF No. 1). The Complaint seeks damages "for taking retaliatory action against Plaintiff with regards to Plaintiff's filing of a claim for damages under the Americans with Disabilities Act." Id. at 1.
On August 2, 2012, the Court granted a motion to withdraw filed by Plaintiff's former counsel. (ECF No. 13). On October 31, 2012, the Court granted Plaintiff's motion to allow Plaintiff to proceed pro se. (ECF No. 17).
On December 5, 2012, the Magistrate Judge issued a scheduling order which stated that any motion to amend the pleadings shall be filed on or before January 7, 2013. (ECF No. 25 at 1).
On December 26, 2012, the Court granted Plaintiff's request for substitution of counsel, approving new counsel to proceed as Plaintiff's counsel in this case. (ECF No. 26).
On January 7, 2013, Plaintiff filed a First Amended Complaint without seeking leave of Court. (ECF No. 32).
On January 17, 2013, the Court ordered the First Amended Complaint to be stricken for failure to seek leave of Court as required by Federal Rule of Civil Procedure 15(a)(2). (ECF No. 33).
The Court stated that "[a]ny motion for leave to file a first amended complaint shall be filed no later than ten (10) days from the date of this Order." Id. at 2.
On January 27, 2013, Plaintiff filed the Motion to Amend Complaint with a proposed first amended complaint attached. (ECF No. 35). The proposed first amended complaint adds new defendants (the State of California, the "22d Agricultural District," and Does 1 through 50), and contains four separate causes of action alleging violation of the Americans with Disabilities Act, retaliation for filing an Americans with Disabilities Act claim, violation of the Unruh Civil Rights Act, and violation of the California Disabled Persons Act. (ECF No. 35-3 at 3). Plaintiff contends that his delay in seeking amendment is attributable to the withdrawal of his prior counsel and his difficulty in obtaining new counsel. Plaintiff contends that the newly added parties are indispensable parties to this litigation.
On February 15, 2013, Defendant filed a response in opposition to the Motion to Amend Complaint. (ECF No. 37). Defendant contends that the motion was made after the January 7, 2013 deadline for amending the pleadings in the scheduling order and thus the liberal policy regarding amendment of pleadings no longer applies. Defendant contends that if the amendment is granted, Defendant will be prejudiced by delaying resolution of the case and requiring Defendant "to respond and continue to defend unmeritorious causes of action." Id. at 7.
Rule 15 of the Federal Rules of Civil Procedure mandates that leave to amend "be freely given when justice so requires." Fed. R. Civ. P. 15(a). "This policy is to be applied with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quotation omitted). In determining whether to allow an amendment, a court considers whether there is "undue delay," "bad faith," "undue prejudice to the opposing party," or "futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962); see also Smith v. Pac. Prop. Dev. Co., 358 F.3d 1097, 1101 (9th Cir. 2004) (citing the Forman factors). "Not all of the [Foman] factors merit equal weight.... [I]t is the consideration of prejudice to the opposing party that carries the greatest weight." Eminence Capital, 316 F.3d at 1052 (citation omitted). "The party opposing amendment bears the burden of showing prejudice." DCD Programs, Ltd. v. ...