United States District Court, S.D. California
DENNIS M. BUCKOVETZ, Plaintiff,
UNITED STATES DEPARTMENT OF THE NAVY, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
FILE FIRST AMENDED COMPLAINT [ECF No. 22]
Mitchell D. Dembin, United States Magistrate Judge
December 5, 2018, Plaintiff Dennis M. Buckovetz
(“Plaintiff”), proceeding pro se,
commenced the instant action against Defendant United States
Department of the Navy (“Defendant”) alleging
Defendant violated the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552(a)(4)(B). (ECF No.
1). On December 11, 2019, Plaintiff filed a motion requesting
leave to file a First Amended Complaint. (ECF No. 22). On
December 27, 2019, Defendant filed a response in opposition
(ECF No. 25), to which Plaintiff replied (ECF No. 28). For
the reasons set forth herein, the Court
GRANTS Plaintiff's motion for leave to
file a First Amended Complaint.
Rule of Civil Procedure 15 governs amendment of pleadings. It
states that if a responsive pleading has already been filed,
the party seeking amendment “may amend the party's
pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice
so requires.” Fed.R.Civ.P. 15(a). This rule reflects an
underlying policy that disputes should be determined on their
merits, and not on the technicalities of pleading rules.
See Foman v. Davis, 371 U.S. 178, 181-82 (1962).
Accordingly, the Court must be generous in granting leave to
amend. See Morongo Band of Mission Indians v. Rose,
893 F.2d 1074, 1079 (9th Cir. 1990) (noting leave to amend
should be granted with “extreme liberality”);
Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149,
1160 (9th Cir. 1989).
courts may deny leave to amend for several reasons, including
the presence of bad faith on the part of the plaintiff, undue
delay, prejudice to the defendant, futility of amendment, and
whether the plaintiff has previously filed an amended
complaint. See Ascon Props., 866 F.2d at 1160;
McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809 (9th
Cir. 1988). The test of futility “is identical to the
one used when considering the sufficiency of a pleading
challenged under Rule 12(b)(6).” Miller v.
Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).
seeks to amend the “requested relief” portion of
his complaint to “address the adequacy of
[Defendant's] search.” (ECF No. 22 at 3).
Specifically, he seeks to remove his request to order
Defendant “to certify . . . that the disclosed email
records include all emails that satisfy the search criteria
presented in [his] FOIA” and seeks to add his request
to order Defendant to “recover or reconstitute any
responsive email records that were deleted from the usmc.mil
email accounts identified in [his] 2015 and 2018 Requests,
” to award “attorney fees, ” and to
“issue a written finding if the circumstances
surrounding the withholding of responsive records raise
questions about whether agency personnel acted arbitrarily or
capriciously.” (ECF No. 22-2 at 5). Defendant opposes,
contending the amended requests for relief are not
permissible in this FOIA action, and therefore, amendment
would be futile. (ECF No. 25 at 1).
Plaintiff requests Defendant “recover or reconstitute
any responsive email records that were deleted.” (ECF
No. 22-2 at 5). Defendant avers that it has no duty under the
FOIA to recover deleted documents. (ECF No. 25 at 2-3). In
support, Defendant cites a Sixth Circuit case, which found
that requiring a “technology expert [to] scan relevant
computers and servers for additional information that might
have been deleted” is “manifestly not what the
[FOIA] intends.” (Id. (citing CareToLive
v. FDA, 631 F.3d 336, 344 (6th Cir. 2011)). In
CareToLive, the Sixth Circuit was addressing the
adequacy of the government's search and noted that while
“some of our sister circuits have required that
agencies attempt to recover electronic files to respond to
certain requests . . . the facts of this case do not require
such a search.” CareToLive, 631 F.3d at 343.
The Eighth Circuit has explained that “[t]he fact that
a document once existed does not mean that it now exists; nor
does the fact that an agency created a document necessarily
imply that the agency has retained it.” Miller v.
U.S. Dep't of State, 779 F.2d 1378, 1384 (8th Cir.
1985). The government is not required by the FOIA to account
for deleted documents, said the Eighth Circuit, “if it
has made a diligent search for those documents in the places
in which they might be expected to be found.”
Id. Accordingly, Plaintiff may recover deleted
emails if the Court finds Defendant's initial search was
inadequate. See CareToLive, 631 F.3d at 343;
Miller, 779 F.2d at 1384. Therefore, his amendment
regarding deleted emails is not necessarily futile.
Plaintiff seeks “attorney's fees.” (ECF No.
22-2 at 5). Defendant opposes this amendment because “a
pro se litigant may not recover attorney's fees under the
FOIA.” Carter v. Veterans Admin., 780 F.2d
1479, 1481 (9th Cir. 1986). In reply, Plaintiff contends
“[t]his amendment is sought in the event that [he]
engage[s] an attorney to counsel and/or represent [him] in
this action.” (ECF No. 28 at 3). Amendment is not
futile if Plaintiff were to retain counsel. The Court advises
Plaintiff that in order to receive attorney's fees he
must actually hire an attorney to represent him in the
action and not merely counsel him. See Kay v.
Ehrler, 499 U.S. 432, 437 (1991) (explaining that a rule
authorizing an award “of counsel fees to pro
se litigants . . . would create a disincentive to employ
counsel whenever such a plaintiff considered himself
competent to litigate on his own behalf”).
Plaintiff seeks to amend his complaint to request a
“written finding” if the Court finds
“agency personnel acted arbitrarily or
capriciously.” (ECF No. 22-2 at 5). Defendant contends
whether the government acted arbitrarily and capriciously is
irrelevant to FOIA actions. (See ECF No. 25 at 3).
However, section 552(a)(4)(F) provides that “[w]henever
the court orders the production of any agency records
improperly withheld from the complainant and assesses against
the United States reasonable attorney fees and other
litigation costs, and the court additionally issues a written
finding that the circumstances surrounding the withholding
raise questions whether agency personnel acted arbitrarily or
capriciously, ” Special Counsel must determine whether
further disciplinary action is necessary. 5 U.S.C. §
552(a)(4)(F)(i). Amendment, therefore, is not necessarily
futile because the Court may ultimately “order the
production of any agency records” in connection with
the dispute and “assess against the United States
reasonable attorney fees and other litigation costs.”
Id. Pursuant to the FOIA, the Court could then issue
“a written finding that the circumstances withholding
raise questions [about] whether agency personnel acted
arbitrarily or capriciously with respect to the
Remaining Foman Factors
found that Plaintiff's amendment is not futile, the Court
proceeds to the remaining Foman factors. First,
there is no evidence that the proposed amendment will
prejudice Defendant. Second, while Plaintiff purportedly
seeks leave to amend his complaint to address claims raised
in Defendant's motion to dismiss and answer, which were
filed in June and August of 2019, the Court does not find
Plaintiff unduly delayed in filing the instant motion. (ECF
No. 22 at 2; see also ECF Nos. 9, 14). Following
Defendant's answer, the parties consented to United
States Magistrate Judge Mitchell D. Dembin's jurisdiction
for all proceedings in this case, including trial, the entry
of final judgment, and all post-trial proceedings on October
28, 2019. (ECF No. 16). The Court held a telephonic case
management conference on November 18, 2019 and set a briefing
schedule later that day. (ECF Nos. 17, 19, 20). Given the
procedural posture of the case, it does not appear that
Plaintiff delayed in filing the instant motion. Further,
Plaintiff has not previously amended his complaint.