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Daniel Ager, Individually and As A Successor In Interest To the Estate of Alan Ager, Kathryn Ager and Elizabeth Ager v. Anthony Hedgepath

April 23, 2013



Presently before the court is Plaintiffs Daniel Ager, Elizabeth Ager, and Kathryn Ager's (collectively, "Plaintiffs") Motion for Leave to File Third Amended Complaint. See Dkt. No. 92. 18 Defendants Anthony Hedgepath, Belinda Hendrick, and D. Spencer's (collectively, "Defendants") 19 oppose the motion. See Dkt. No. 93. The court finds this matter suitable for decision without oral 20 argument pursuant to Civil Local Rule 7-1(b) and hereby VACATES the hearing currently set for 21 April 26, 2013. Having fully reviewed the parties' briefing, and for the foregoing reasons, the 22 court GRANTS Plaintiffs' Motion. 23


Plaintiffs filed this lawsuit pursuing claims arising under 42 U.S.C. § 1983 on behalf of 25 themselves and their deceased father Dr. Alan Ager. Dkt. No. 1. Plaintiffs' complaint alleges that 26 Defendants violated Plaintiffs' rights when they failed to take reasonable steps to protect Dr. Ager 27 from an obvious risk of attack from his cellmate. Dr. Ager was ultimately strangled to death by 28 this cellmate. Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). 2

Dkt. No. 17. The court granted-in-part and denied-in-part Defendants' motion to dismiss on 3 August 24, 2012 and granted leave to amend the complaint within the next thirty days to correct the 4 infirmities the court had identified. Dkt. No. 32. 5

Also on August 24, 2012, the court issued its Case Management Order, which included an 6 order "that the deadline for joinder of any additional parties, or other amendments to the pleadings, 7 is October 30, 2012." Dkt. No. 33. Plaintiffs filed a First Amended Complaint on September 24, 8 Aluzri, and J. Martin. Dkt. No. 35. Less than two weeks later, on October 5, 2012, Plaintiffs filed a 10 2012, adding defendants Arlene Solis, Robert Burgh, Benjamin Bloch, D. Garcia, Antonella 9 Second Amended Complaint adding Carl Warfield as an additional defendant. Dkt. No. 37.

On January 31, 2013, the court struck Plaintiffs' Second Amended Complaint because Plaintiffs had 12 not filed the appropriate motion under Federal Rule of Civil Procedure 15 seeking leave to file their 13 amended complaint. See Dkt. No. 69. Then, on March 14, 2013, the court granted Plaintiffs' 14 Motion to Modify the Scheduling Order Pursuant to Fed. R. Civ. P. 16(b)(4), which, inter alia, 15 extended the deadline to file for leave to file an amended complaint from October 30, 2012 to 16 March 30, 2013. Dkt. No. 90. On March 28, 2013, Plaintiffs filed the instant motion seeking leave 17 to file a Third Amended Complaint, which would add Robert Burgh as a named defendant and 18 remove D. Spencer as a named defendant. The court now turns to the substance of that motion. 19

21 should freely give leave when justice so requires"); Morongo Band of Mission Indians v. 22 Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Leave need not be granted, however, where the 23 amendment of the complaint would cause the opposing party undue prejudice, is sought in bad 24 faith, constitutes an exercise in futility, or creates undue delay. Foman v. Davis, 371 U.S. 178, 182 25 (1962); Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994). Not all of the Rule 15 26 considerations are created equal; "it is the consideration of prejudice to the opposing party that 27 carries the greatest weight." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th 28

II.Legal Standard

Leave to amend is generally granted with liberality. Fed. R. Civ. P. 15(a)(2) ("The court Cir. 2003). "The party opposing the amendment bears the burden of showing prejudice." In re 2 Fritz Cos. Sec. Litig., 282 F. Supp. 2d 1105, 1109 (N.D. Cal. Aug. 27. 2003) (citing DCD 3 Programs Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987)). 4

6 deciding a motion for leave to amend. Defendants argue that a grant of leave to amend would 7 unduly prejudice them by further delaying the proceedings in order to allow the newly added 8 defendant, Mr. Burgh, to conduct discovery and file a dispositive motion. The court is not 9 persuaded by this argument. Defendants had notice that Plaintiffs intended to join Mr. Burgh as 10 early as September 24, 2012, when Plaintiffs filed their First Amended Complaint adding Mr.

Burgh as a defendant. Though the court struck Plaintiffs' amended complaint, it did so not because 12


The court begins with an examination of prejudice because it is the critical factor in Mr. Burgh was an improper defendant, but only because Plaintiffs had failed to follow the proper 13 procedure. Thus Defendants had no basis on which to infer that the court would prohibit Plaintiffs' 14 joining Mr. Burgh to this lawsuit through any properly filed motion. Mr. Burgh is represented by 15 the Attorney General's office, which has been involved in this case since the outset and has already 16 produced Mr. Burgh for deposition with full knowledge that he was a possible defendant. 17

Furthermore, the delay Defendants complain of is of limited duration-Defendants seek only a 18 sixty-day extension of the remaining deadlines in order to allow Mr. Burgh to conduct discovery 19 and file any motions. Under these circumstances, such ...

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