United States District Court, W.D. Washington, Tacoma
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
Theresa L. Fricke, United States Magistrate Judge
matter is before the Court on plaintiff's motion for
leave to amend and proposed amended complaint. Dkt. 145.
Defendant has filed a response opposing plaintiff's
motion (Dkt. 147) and plaintiff has filed a reply in support
of the motion (Dkt. 148). In addition, plaintiff also asks
the Court to find that the proposed second amended complaint
relates back to the original filing date of this action. Dkt
145, 148. This matter has been referred to the undersigned
Magistrate Judge. Mathews, Sec'y of H.E.W. v.
Weber, 423 U.S. 261 (1976); 28 U.S.C. §
636(b)(1)(B); Local Rule MJR 4(a)(4). For the reasons set
forth below, the Court GRANTS plaintiff's motion for
leave to amend but declines to find that the second amended
complaint relates back to the original filing date of this
AND PROCEDURAL BACKGROUND
filed the original complaint on February 1, 2017 under 42
U.S.C. § 1983 raising 11 claims against more than a
dozen named defendants. Dkt. 11. Plaintiff proceeded pro
se and in forma pauperis. Dkt. 1, 7, 8. The
defendants named in the original complaint filed a motion to
dismiss. Dkt. 29. The Court granted the defendants'
motion as to plaintiff's claims predicated on violations
of PREA and denied defendants' motion as to the remaining
claims. Dkt. 65, 79.
Court subsequently allowed plaintiff to file an amended
complaint, in which he named additional defendants, asserting
20 claims alleging violations of his federal constitutional
rights. Dkt. 85, 86. Defendants moved to dismiss
plaintiff's amended complaint. Dkt. 104. The Report and
Recommendation stated the Court should deny defendants'
motion in part and grant defendants' motion in part. Dkt.
126. On January 31, 2019 the Court declined to adopt the
Report and Recommendation, referring the matter to the
undersigned for consideration of the merits of a fully
briefed motion on the issue of res judicata. Dkt. 130.
April 11, 2019 Darryl Parker filed a notice of appearance on
behalf of plaintiff. Dkt. 133. Plaintiff's counsel
represented plaintiff during the new briefing period on the
issue of res judicata. On August 21, 2019 the undersigned
filed a report and recommendation regarding the issue of res
judicata. Dkt. 139. On September 10, 2019 the Court adopted
the Report and Recommendation. Dkt. 142. Defendants have
filed an answer to plaintiff's amended complaint. Dkt.
143. Defendant informs the Court, and plaintiff does not
deny, that the parties conducted a CR 26(f) conference by
telephone, the parties agreed to exchange their initial
disclosures and the parties have served initial
interrogatories and requests for production. Dkt 146 at 2;
147; 147-1 at 2-3, 7; 148 at 3-4.
indicate that they have served plaintiff with initial
disclosures and answers to plaintiff's first set of
discovery requests. Dkt. 147-1 at 5. Plaintiff has not served
defendants his initial disclosures or responses to
defendants' discovery requests. Dkt. 148 at 3. The
parties have not submitted a joint status report and the
Court has not set a pre-trial schedule.
Motion for Leave to Amend
seeks leave to amend the complaint in order to “add
defendants, facts and claims of relief arising out of the
same core facts as his original Complaint from when he was a
pro se litigant.” Dkt. 145 at 2. Defendants oppose the
motion arguing that plaintiff did not provide defendants
proper notice regarding the additional claims and defendants
that plaintiff now seeks to add in the second amended
complaint. Dkt. 146 at 1-2, 5-6. Defendants also argue that
plaintiff does not provide an explanation for the delay in
seeking leave to file the second amended complaint.
Id. at 5-6. Finally, defendants also raise defenses
to plaintiff's second amended complaint, including that
certain claims are barred by the statute of limitation, the
proposed amended complaint realleges claims previously
dismissed in this litigation and that the additional claims
fail to state a claim upon which relief could be granted.
Id. at 4-6.
to Federal Rule of Civil Procedure 15(a), after an initial
period for amendment as of right, pleadings may be amended
only with the opposing party's written consent or by
leave of the court. Leave to amend should be freely given
when justice so requires. Fed.R.Civ.P. 15(a)(2);
Desertrain v. City of Los Angeles, 754 F.3d 1147,
1154 (9th Cir. 2014) (“[T]his policy is to be applied
with extreme liberality.”)
Court must consider five factors when determining the
propriety for leave to amend: bad faith, undue delay,
prejudice to the opposing party, futility of amendment, and
whether the plaintiff has previously amended the complaint.
Desertrain, 754 F.3d at 1154; Johnson v.
Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004).
Additionally, for each of these factors, 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).
is no evidence that plaintiff seeks to amend the complaint in
bad faith or to cause delay. The Court also finds that there
is no undue delay because plaintiff initiated this action
pro se and plaintiff's current counsel entered
notice of appearance during the briefing period for
defendants' latest motion to dismiss.
the motion for leave to amend was filed less than two months
after the District Court adopted the undersigned's Report
and Recommendation. The proposed second amended complaint
incorporates the District Court's ...