United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION FOR LEAVE TO FILE THIRD AMENDED
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Ex Parte Motion
for Leave to File a Third Amended Complaint. Dkt. #140.
Plaintiff, Mr. Ramirez, seeks leave to add factual
allegations related to the government's recent denial of
his request to renew his DACA status-which occurred after the
Second Amended Complaint was filed-and to assert additional
claims based upon new evidence and these new events.
Plaintiff sought ex parte relief arguing that it was
justified under a heightened urgency for relief. Id.
at 1. The Court determined that the Motion was improperly
noted as an ex parte motion and renoted it in accordance with
Local Civil Rule 7(d)(3). Defendants oppose the Motion. Dkt.
#141. For the following reasons, the Court grants the Motion.
factual background was previously recounted at length in the
Court's amended Order Granting Plaintiff's Motion for
Preliminary Injunction. Dkt. #133. The Court adopts that
factual background and briefly summarizes the history most
relevant to consideration of this Motion.
Ramirez was brought to the United States when he was
approximately ten, has lived in the country most of his life,
and has a five-year old, American-born son. In 2013, Mr.
Ramirez applied for deferred action and work authorization
under the “Deferred Action for Childhood
Arrivals” (“DACA”) policy. He was granted
DACA status and work authorization in 2014 and was reapproved
in 2016. His 2016 approval was to be valid until May 5, 2018.
February 2017, Immigration and Customs Enforcement
(“ICE”) detained Mr. Ramirez, maintained that he
was in the country illegally, and issued him a Notice to
Appear (“NTA”) at removal proceedings. At the
same time, U.S. Citizenship and Immigration Services
(“USCIS”) provided Mr. Ramirez with a Notice of
Action (“NOA”) indicating that issuance of the
NTA automatically terminated his DACA status and work
authorization. Subsequent proceedings before the Immigration
Court resulted in an Order of Removal.
Mr. Ramirez initiated this action. Through this legal action
and others, the government was forced to restore Mr.
Ramirez's DACA status and work authorization for its
original term-until May 5, 2018. After restoring his status,
the government sent Mr. Ramirez a Notice of Intent to
Terminate (“NOIT”) his restored status because he
did “not warrant a favorable exercise of prosecutorial
discretion” because of “statements relating to
gang association.” Dkt. #126-1 at 19-20. Mr. Ramirez
challenged the government's actions in seeking to
terminate his DACA status and work authorization status.
See generally, Dkt. #78. Because the government
lacked evidence supporting its determination that Mr. Ramirez
was a gang member, this Court found that
“Defendants' continued assertion that [Mr. Ramirez]
is a gang member or gang-affiliated is arbitrary and
capricious.” Dkt. #133 at 19. Accordingly, the Court
enjoined Defendant USCIS “from asserting, adopting, or
relying in any proceedings on any statement or record made as
of this date purporting to allege or establish that Mr.
Ramirez is a gang member, gang affiliated, or a threat to
public safety.” Id. at 23.
the Court issued its preliminary injunction, Mr. Ramirez
applied to renew his DACA status and work authorization.
Uncharacteristically, the government denied his relatively
routine request that had been granted twice before under the
same criteria. Dkt. #140-2 at ¶ 83. Mr. Ramirez alleges
that the government instead concluded that he was a
“public safety threat”based on relatively minor
transgressions. Mr. Ramirez maintains that Defendants did
not previously rely on these transgressions even though they
were known to the government. Id. Mr. Ramirez
further maintains that the government's denial was
unlawful, in violation of this Court's preliminary
injunction, and violated his rights. Id. at ¶
Rule of Civil Procedure 15 mandates that leave to amend
“be freely given when justice so requires.”
Fed.R.Civ.P. 15(a). “This policy is to be applied with
extreme liberality.” Eminence Capital, LLC v.
Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)
(quotation omitted). The party opposing amendment has the
burden of showing that amendment is not warranted. DCD
Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir.
1987); see also Richardson v. United States, 841
F.2d 993, 999 (9th Cir. 1988). Amendment may be unwarranted
“due to ‘undue delay, bad faith or dilatory
motive on part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party . . ., [and] futility of
amendment.'” Carvalho v. Equifax Info. Servs.,
LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
“Not all of the factors merit equal weight. . . . [I]t
is the consideration of prejudice to the opposing party that
carries the greatest weight.” Eminence
Capital, 316 F.3d at 1052 (citation omitted).
“Absent prejudice, or a strong showing of any of the
remaining  factors, there exists a presumption
under Rule 15(a) in favor of granting leave to amend.”
Id. (emphasis in original).
Granting Leave to Amend is Appropriate
government's primary argument against amendment is that
it would be unduly prejudiced by defending against Mr.
Ramirez's new claims in this action because the new
claims are based on new actions taken by the government. In
support, the government relies on Ctr. for Biological
Diversity v. Salazar, No. CV 07-0038-PHX-MHM, 2010 WL
3924069 (D. Ariz. Sept. 30, 2010) and Planned Parenthood
v. Neely, 130 F.3d 400, 402 (9th Cir. 1997). But, as Mr.
Ramirez notes, both of those cases dealt with attempts to
file supplemental pleadings after judgment had already been
entered in the cases. In fact, the court in Ctr. For
Biological Diversity specifically recognizes that the
general rule is that a motion to supplement will likely be
granted where an action is still ...