United States District Court, W.D. Washington, Tacoma
ORDER ON PENDING MOTIONS
J. RICHARD CREATURA, Magistrate Judge.
The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR1, MJR3 and MJR4.
There are a number of pending motions in this action. The Court can address some of these motions by order and some must be addressed in a Report and Recommendation.
The first motion is plaintiff's motion to have the Court serve subpoenas (Dkt. 25). Plaintiff obtained signed subpoenas from the Court. One of these subpoenas is directed to defendants and tells them to provide documents (Dkt. 25-1) The other subpoena is directed to Dr. Stanley Fleming and directs him to provide medical records (Dkt. 25-2). Plaintiff's pro se status pays the filing fee, which an inmate repays over time, and the cost of initial service of process. Plaintiff must still pay other costs of litigation. The Court does not serve subpoenas. Plaintiff can send a subpoena duces tecum to counsel in connection with depositions. See Fed.R.Civ.P. 30(b)(2). Plaintiff may make a discovery request pursuant to Fed.R.Civ.P. 34. If plaintiff wishes to enforce a subpoena served pursuant to Fed.R.Civ.P. 45, he must provide the Court with proof that he has complied with the rule. The Court denies plaintiff's motion asking the Court to serve his subpoenas (Dkt. 25).
Plaintiff's next asks the Court to allow him to file an amended complaint (Dkt. 28). Plaintiff makes his request in response to a motion to dismiss filed by defendants (Dkt. 21). However, plaintiff has already filed one amended complaint (Dkt. 7).
Fed. R. Civ. P. 15(a) addresses amendment of the complaint before trial and states:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
Fed. R. Civ. P. 15(a)(2) applies to this case because plaintiff has already amended his complaint once (Dkt. 7). There are policy reasons for liberally granting motions to amend when justice so requires. Sweaney v. Ada County , 119 F.3d 1385, 1392 (9th Cir, 1997). The factors considered include undue delay, bad faith, prejudice to the opponent, and futility. Id . See also Foman v. Davis , 371 U.S. 178, 182 (1962). A party wishing to amend a pleading in this court must comply with Local Civil Rule 15. Local Civil Rule 15 states:
A party who moves for leave to amend a pleading, or who seeks to amend a pleading by stipulation and order, must attach a copy of the proposed amended pleading as an exhibit to the motion or stipulation. The party must indicate on the proposed amended pleading how it differs from the pleading that it amends by bracketing or striking through the text to be deleted and underlining or highlighting the text to be added. The proposed amended pleading must not incorporate by reference any part of the preceding pleading, including exhibits. If a motion or stipulation for leave to amend is granted, the party whose pleading was amended must file and serve the amended pleading on all parties within fourteen (14) days of the filing of the order granting leave to amend, unless the court orders otherwise.
See Local Civil Rule 15. Plaintiff has not provided the Court with a proposed amended complaint. The Court is not in a position to rule properly on plaintiff's request because the Court cannot know if the proposed amendment cures any defect or is futile. Accordingly, the Court denies plaintiff's motion to file an amended complaint (Dkt. 27), without prejudice. Plaintiff may renew his motion and provide a proposed complaint. If plaintiff files a motion to amend with a proposed amended complaint he ...