United States District Court, S.D. California
REPORT AND RECOMMENDATION GRANTING PLAINTIFF'S
UNOPPOSED MOTION TO AMEND [ECF NO. 53]
WILLIAM V. GALLO, UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff Andrew Cejas's unopposed
Motion for Leave to Amend his Complaint. (ECF No. 53.) For
the reasons that follow, the Court
RECOMMENDS Plaintiff's unopposed Motion
filed a Complaint pursuant to 42 U.S.C. § 1983 on August
15, 2014. (ECF No. 1.) On October 4, 2016, Defendants D.
Jaime, D. Paramo, S. Rutledge, and D. Strayhorn moved to
dismiss Plaintiff's claims against Paramo and Jaime. (ECF
No. 17.) On September 1, 2017, the Court granted
Defendants' motion to dismiss claims against Paramo and
Jaime. (ECF No. 42.) Defendants filed an Answer to
Plaintiff's remaining claims on November 8, 2017. (ECF
March 9, 2018, Plaintiff moved for leave to file an amended
complaint. (ECF No. 53.) Defendants did not file a response
in opposition to the motion.
to Federal Rule of Civil Procedure (“Rule”)
15(a), leave to amend a complaint after a responsive pleading
has been filed may be allowed by leave of court. Fed.R.Civ.P.
15(a)(2). Such amendments “shall be freely given when
justice so requires.” Foman v. Davis, 371 U.S.
178, 182 (1962). “This policy is to be applied with
extreme liberality.” Eminence Capital, LLC v.
Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003).
“Since Rule 15 favors a liberal policy towards
amendment, the nonmoving party bears the burden of
demonstrating why leave to amend should not be
granted.” Genentech, Inc. v. Abbot
Laboratories, 127 F.R.D. 529, 530-31 (N.D. Cal. 1989)
(citing Senza-Gel Corp. v. Seiffhart, 803 F.2d 661,
666 (9th Cir. 1986) (“the nonmovent bears the burden of
showing why amendment should not be granted”).
determining whether to grant leave to amend, courts weigh
certain factors: “undue delay, bad faith or dilatory
motive on the part of [the party who wishes to amend a
pleading], repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [and]
futility of amendment [.]” Foman, 371 U.S. at
182. “Not all of the factors merit equal weight.”
Eminence Capital, LLC, 316 F.3d at 1052. For
example, “delay alone cannot justify denial of leave to
amend.” Genentech, Inc., 127 F.R.D. at 530
(N.D. Cal. 1989) (citing DCD Programs v. Leighton,
833 F.2d 183, 186 (9th Cir. 1987); see also Kendrick v.
County of San Diego, Case No. 15-CV-2615-GPC(RBB), 2017
WL 2692903, at *5 (S.D. Cal 2017).
Plaintiff waited over three and a half years between the
filing of his Complaint and his request to file an amended
complaint. Plaintiff has offered no reasoning for such a
delay other than claiming he has been on lock down “for
months.” (ECF No. 53.) To call this undue delay would
be an understatement. However, “delay alone cannot
justify denial of leave to amend.” Genentech,
Inc., 127 F.R.D. at 530 (N.D. Cal. 1989).
examining the remaining Foman factors, the Court
finds that leave to amend is appropriate. This is Plaintiffs
first request to amend, thus he has not failed to cure
deficiencies in previous amendments. Additionally, Defendants
have failed to show, through their lack of an opposition,
that Plaintiff is moving to amend in bad faith or that
Defendants will suffer undue prejudice by allowing the
the Court RECOMMENDS the Motion be
GRANTED and Plaintiff be allowed leave to
file an amended complaint.
reasons set forth above, it is RECOMMENDED
that Plaintiffs Motion to file an amended complaint be
GRANTED. This Report and Recommendation will
be submitted to the United States District Judge assigned to
this case, pursuant to the ...