United States District Court, S.D. California
JOHN L. ERVIN, Plaintiff,
COUNTY OF SAN DIEGO, Defendant.
WILLIAM Q. HAYES United States District Judge
matter before the Court is the motion for leave to file an
amended complaint filed by Plaintiff John. L. Ervin. (ECF No.
6, 2014, Plaintiff John L. Ervin, proceeding pro se,
commenced this action by filing a complaint pursuant to 42
U.S.C. § 1983 alleging that Defendant County of San
Diego (“the County”) violated Plaintiff's
constitutional right to due process by listing him on the
California Child Abuse Central Index (“CACI”).
(ECF No. 1).
April 1, 2015, Plaintiff filed the First Amended Complaint
(“FAC”) which alleged claims against the County,
as well as newly-named Defendants Brenda Daly, Robert Lough,
Debra Zanders-Willis, and Kamala Harris. (ECF No. 40). On
September 24, 2015, the Court granted two motions to dismiss
(ECF Nos. 43, 53) and dismissed the FAC without prejudice.
(ECF No. 61).
December 21, 2015, Plaintiff filed the Second Amended
Complaint (“SAC”). (ECF No. 75). The SAC alleged
claims against the County and Does 1 through 10 for
violations of due process and equal protection of the law
pursuant to 42 U.S.C. § 1983. The SAC also alleged a
claim against Defendant Kamala Harris pursuant to 42 U.S.C.
§ 1983 seeking declaratory relief and alleging that
California's procedure for listing individuals on the
CACI violates Plaintiff's constitutional due process
January 25, 2016, Defendant Kamala Harris and the County each
filed respective motions to dismiss (ECF Nos. 80, 81). The
Court granted the motion to dismiss filed by Defendant Kamala
Harris. (ECF No. 86 at 13-16). Pursuant to the
Younger abstention doctrine, the Court denied the
County's motion to dismiss without prejudice and stayed
the case until further order of the Court. Id. at
November 18, 2016, the Court issued an order lifting the
stay. (ECF No. 90 at 2). On December 7, 2016, the County
filed a motion to dismiss the SAC. (ECF No. 91). On July 14,
2017, the Court granted the County's motion to dismiss
and dismissed the SAC without prejudice as to the causes of
action alleged against the County. (ECF No. 94). The Court
stated, “Plaintiff shall file any motion for leave to
file an amended complaint on or before August 11, 2017 and
pursuant to Local Civil Rule 7.1.” Id.
Motion for Leave to File Third Amended Complaint
August 7, 2011, Plaintiff filed a motion seeking leave to
file a third amended complaint against the County. (ECF No.
95). Plaintiff contends that amendment should be allowed
because the motion is not made in bad faith and because the
amended complaint addresses the deficiencies of his prior
complaints. Id. The docket reflects that no response
in opposition has been filed. On September 4, 2017, Plaintiff
filed a reply asserting that the County has “chosen not
to oppose the motion to amend.” (ECF No. 96).
Rule of Civil Procedure 15 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 Foman v. Davis, 371 U.S. 178
(1962), the Supreme Court offered several factors for
district courts to consider in deciding whether to grant a
motion to amend under Rule 15(a):
In the absence of any apparent or declared reason - such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc. - the leave sought should, as the rules require, be
Foman , 371 U.S. at 182; see also Smith
v. Pac. Prop. Dev. Co., 358 F.3d 1097, 1101 (9th Cir.
2004). “Not all of the [Foman] factors merit
equal weight. As this circuit and others have held, it is the
consideration of prejudice to the opposing party that carries
the greatest weight.” Eminence Capital 316
F.3d at 1052 (citations omitted). “The party opposing
amendment bears the burden of showing prejudice.”
DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187
(9th Cir. 1987). “Absent prejudice, or a strong showing
of any of the remaining Foman factors, there exists
presumption under Rule 15(a) in favor of granting
leave to amend.” Eminence Capital, 316 F.3d at
has not filed any response in opposition to Plaintiff's
motion. The Court concludes that Defendant has not made a
sufficiently strong showing of the Foman factors to
overcome the presumption of Rule 15(a) in favor of ...