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rejecting defendants' argument that addition of a new defendant "will ultimately be futile because of qualified immunity" since defendants "may address this issue by an appropriate [dismissal or] dispositive motion"
Summary of this case from Scooter's Pals Rescue v. Cnty. of PlacerOpinion
No. CIV S-05-2090 MCE EFB PS.
May 21, 2007
ORDER
This case, in which plaintiff is proceeding in propria persona, was before the undersigned on May 16, 2007, for a status conference and for hearing on plaintiff's motion to amend. 28 U.S.C. § 636(b)(1); Local Rule 72-302(c)(21).
On February 26, 2007, the undersigned granted plaintiff's request for additional time to file a motion for leave to amend, and set the motion for hearing on May 9, 2007, which was later continued to May 16, 2007. Although that order instructed plaintiff to file a motion for leave to amend the complaint within forty-five days, plaintiff never filed the motion. Instead, she simply filed a first amended complaint.
Defendants, who had previously filed an answer, moved under Fed.R.Civ.P. 12(f) to strike the first amended complaint. An amended complaint filed without leave of court, when so required, is without legal effect. Ritzer v. Gerovicap Pharmaceutical Corp., 162 F.R.D. 642, 644-45 (D. Nev. 1995) (citing Hoover v. Blue Cross Blue Shield, 855 F.2d 1538, 1544 (11th Cir. 1988)). Here, plaintiff was required to obtain leave of court to file the amended complaint because an answer was on file. Fed.R.Civ.P. 15(a). However, defendants' motion to strike is not the proper procedural device to seek dismissal of a complaint. Ritzer, 162 F.R.D. at 644 (citations omitted).
Nonetheless, for the sake of efficiency, the undersigned has considered defendants' motion to strike and hereby denies it. As explained below, the court construes plaintiff's filing as a request for leave to amend under Rule 15(a) and grants the motion. Defendants' futility/immunity argument will be address in either a motion for summary judgment or a motion to dismiss.
The court has discretion to deem an untimely amended pleading served without judicial permission "as properly introduced when the court would have granted leave to amend had it been sought." Ritzer, 162 F.R.D. at 644 (citations omitted).
Rule 15(a) provides that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). "The Supreme Court and the Court of Appeals for the Ninth Circuit interpret . . . Rule 15(a) very liberally. . . ." Ritzer, 162 F.R.D. at 644 (citing Foman v. Davis, 371 U.S. 178 (1962); Schlacter-Jones v. General Tel. of California, 936 F.2d 435, 443 (9th Cir. 1991); United States v. Webb, 655 F.2d 977, 979-80 (9th Cir. 1981)).
In determining whether justice requires a court to grant leave to amend, courts commonly consider four factors: (1) bad faith or dilatory motive on the part of the movant; (2) undue delay in filing the motion; (3) prejudice to the opposing party; and (4) the futility of the proposed amendment. Ritzer, 162 F.R.D. at 644 (citing Roth v. Marquez, 942 F.2d 617, 628 (9th Cir. 1991)). "The party opposing the motion for leave to amend a complaint bears the burden of showing prejudice." Ritzer, 162 F.R.D. at 644 (citing DCD Programs v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987)).
Here, defendants have offered no substantive argument as to why plaintiff should not be granted leave to amend the complaint. The first amended complaint lodged by plaintiff is nearly identical to the originally filed complaint, except that plaintiff now seeks to add as a defendant Solano County Building Inspector/Compliance Officer David James, individually and in his official capacity. The court, although strongly disfavoring plaintiff's failure to follow applicable rules and court orders, finds no evidence of bad faith or dilatory motive on the part of plaintiff, nor does it discern any prejudice to the opposing party. Defendants' motion to strike, deemed an opposition to leave to amend, does not address the issue of futility. However, at oral argument defendants argued that the amendment to add an additional party will ultimately be futile because of qualified immunity. Defendants may address this issue by an appropriate dispositive motion.
For these reasons, the court hereby construes the lodged first amended complaint as a motion for leave to amend, grants that motion, and deems the first amended complaint as properly introduced. Plaintiff shall promptly serve the first amended complaint in accordance with the Federal Rules of Civil Procedure and file proof of service of such. Accordingly, the hearing on defendants' motion to strike set for May 23, 2007, is vacated.
Plaintiff is cautioned that further failure to comply with the Federal Rules of Civil Procedure, this district's local rules, and court orders may result in sanctions, including a recommendation of dismissal. See Local Rule 11-110. Plaintiff has indicated her intention to retain counsel. Plaintiff shall promptly notify the court upon such retention.
Given the addition of another defendant to this action, the court declines to issue a scheduling order at this time. A continued status conference is set for August, 1, 2007.
In accordance with the foregoing, IT IS HEREBY ORDERED that:
1. Defendants' motion to strike the amended complaint is denied;
2. The lodged first amended complaint is construed as a motion for leave to amend, that motion is granted, and the first amended complaint is deemed properly introduced; and,
3. The hearing on defendants' motion to strike set for May 23, 2007, is vacated, and a further status conference is set for August 1, 2007 at 10:00 a.m. in Courtroom No. 25.