Opinion
No. C-03-4699 MMC, Docket No. 21.
December 7, 2004
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT TO ASSERT NEW CAUSES OF ACTION FOR FALSE ARREST/FALSE IMPRISONMENT; VACATING HEARING
Before the Court is the motion filed November 2, 2004 by plaintiff Blessed Herve ("Herve") in which Herve seeks leave to amend his complaint to assert causes of action for false arrest/false imprisonment under both state and federal law. Defendants have filed opposition to the motion, to which Herve has replied. Having reviewed the papers filed in support of and in opposition to the motion, the Court finds the matter appropriate for decision without oral argument, see Civ. L.R. 7-1(b), and hereby VACATES the December 10, 2004 hearing on the motion.
Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend "shall be freely given when justice so requires."See Fed.R.Civ.P. 15(a). In deciding whether justice requires granting leave to amend, factors to be considered include the presence or absence of undue delay, bad faith or dilatory motive on the part of the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of the proposed amendment. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). "[T]he consideration of prejudice to the opposing party carries the greatest weight."Id.
The Court will deny Herve's motion, for the following reasons:
1. Although there is no evidence that Herve is acting in bad faith, he has unduly delayed in seeking leave to amend, as his motion is based primarily on the March 10, 2004 deposition testimony of Brenda Sweet ("Sweet"), see Cox Decl. Ex. A, that she did not intend to make a citizen's arrest of Herve. Sweet's deposition was taken nearly eight months before plaintiff moved for leave to amend, and Herve was well aware of the need to amend, as the parties' joint case management statement, filed March 12, 2004, contained a statement by Herve challenging his arrest and a response by defendants that the complaint contained no claims challenging Herve's arrest. (See Newdorf Decl. Ex. D at 2-3.) Although Herve states he did not believe Sweet's testimony alone was "sufficient," (see Opp. at 3:13-15), a party cannot wait until he has all the evidence available on a claim before seeking to include such claim in his complaint, at least where, as here, the claim would inject into the action entirely new theories of liability, discovery has closed, and the trial date is rapidly approaching. See, e.g., Chodos v. West Publishing Co., Inc., 292 F.3d 992, 996, 1003 (9th Cir. 2002) (holding district court did not err in finding undue delay where plaintiff moved to amend after the close of discovery based on facts long known to plaintiff); see also McGlinchy v. Shell Chemical Co., 845 F.2d 802, 809 (9th Cir. 1988) (holding finding undue delay, even though trial date had been vacated, where plaintiff filed motion to amend six months after learning basis for new claims).
2. Defendants would be unduly prejudiced should the Court grant Herve leave to amend. By waiting until the dispositive motion deadline before seeking leave to amend, Herve has precluded defendants from asserting a qualified immunity defense, or otherwise challenging the merits of Herve's new claims, prior to trial. Herve was aware that defendants intended to file a motion for summary judgment on the issue of qualified immunity if Herve amended his complaint to assert a false arrest claim, as defendants so stated in the parties' March 12, 2004 joint case management statement. (See Newdorf Decl. Ex. D at 3.) The Supreme Court has held that entitlement to qualified immunity should be determined "early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." See Saucier v. Katz, 533 U.S. 194, 200 (2001). By not moving to amend until the dispositive motion deadline, Herve has effectively precluded defendants from filing a qualified immunity motion before trial. Additionally, discovery has closed and all parties are ready to proceed to trial on the basis of the claims pleaded to date. Although the Court could continue the trial date, defendants have an interest in prompt resolution of this matter, and Herve has not shown adequate justification for his failure to file his motion in a more timely manner. See, e.g., Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980 (9th Cir. 1999) (finding need to delay proceedings "supports a district court's finding of prejudice from a delayed motion to amend the complaint"); McGlinchy, 845 F.2d at 809 (finding defendants would be prejudiced by motion to amend filed late in litigation, which proposed to add new theories of liability; finding defendants "were entitled to rely on a timely close of discovery and a near-term trial date").
Accordingly, Herve's motion is hereby DENIED.
The order closes Docket No. 21.