striking fourth amended complaint: “If an amended pleading cannot be made as 7 || of right and is filed without leave of court or consent of the opposing party, the amended pleading 8 | isa nullity and without legal effect.”
How later courts described this case
- striking fourth amended complaint: “If an amended pleading cannot be made as 7 || of right and is filed without leave of court or consent of the opposing party, the amended pleading 8 | isa nullity and without legal effect.”
Written by the judges who cited it.
The opinion
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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 KEENAN WILKINS, also known as No. 2:16-CV-0475-TLN-DMC-P
Nerrah Brown,
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Plaintiff,
13 ORDER
v.
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JEFF MACOMBER, et al.,
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Defendants.
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18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
19 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion, ECF No. 91, for leave to
20 amend.
21 This action currently proceeds on Plaintiff’s second amended complaint. See ECF
22 No. 20. Plaintiff seeks leave to file a third amended complaint to add a new claim of retaliation
23 against Defendant Orel David. See ECF No. 91. Plaintiff separately filed a document entitled
24 “Amendment to Complaint” with his motion. See ECF No. 90.
25 The Federal Rules of Civil Procedure provide that a party may amend his or her
26 pleading once as a matter of course within 21 days of serving the pleading or, if the pleading is
27 one to which a responsive pleading is required, within 21 days after service of the responsive
28 pleading, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service of a motion under Rule
1 12(b), (e), or (f) of the rules, whichever time is earlier, see Fed. R. Civ. P. 15(a)(1)(B). In all
2 other situations, a party’s pleadings may only be amended upon leave of court or stipulation of all
3 the parties. See Fed. R. Civ. P. 15(a)(2).
4 Here, Plaintiff’s motion has been filed well beyond the permissive time to amend
5 as of right. Defendants answered the second amended complaint on September 17, 2020.
6 Discovery has closed and Defendants filed a motion for summary judgment on May 16, 2022,
7 which is pending. Therefore, Plaintiff requires leave of Court to amend.
8 Where leave of court to amend is required and sought, the court considers the
9 following factors: (1) whether there is a reasonable relationship between the original and
10 amended pleadings; (2) whether the grant of leave to amend is in the interest of judicial economy
11 and will promote the speedy resolution of the entire controversy; (3) whether there was a delay in
12 seeking leave to amend; (4) whether the grant of leave to amend would delay a trial on the merits
13 of the original claim; and (5) whether the opposing party will be prejudiced by amendment. See
14 Jackson v. Bank of Hawai’i, 902 F.2d 1385, 1387 (9th Cir. 1990). Leave to amend should be
15 denied where the proposed amendment is frivolous. See DCD Programs, Ltd. v. Leighton, 833
16 F.2d 183, 186 (9th Cir. 1987).
17 Considering the foregoing factors, the Court finds that leave to amend is not
18 warranted. First, granting leave to amend is not in the interest of judicial economy as this matter
19 is now ready for potential resolution on summary judgment and amendment would only serve to
20 thwart a speedy resolution of the entire controversy. Second, there was a delay in seeking leave
21 to amend. Discovery in this action closed on June 21, 2021. See ECF No. 51. And, as noted
22 above, Defendants have filed a motion for summary judgment. See ECF No. 68. Plaintiff states
23 in the current motion that his new retaliation claim is based on arguments and evidence presented
24 by Defendants in the context of their summary judgment motion. If so, then Plaintiff would have
25 known about the retaliation claim at the latest upon the close of discovery in 2021. Plaintiff
26 provides no explanation for the delay until December 2022 to file the current motion for leave to
27 amend. Third, to the extent summary judgment is denied, allowing amendment at this stage of
28 the proceeds would delay any trial on the merits. Finally, allowing amendment after Defendants
1 | have already fully briefed their motion for summary judgment would result in prejudice to them
2 || as an amended operative pleading would render all current work essentially moot and a waste of
3 || time and resources.
4 Where a party files an amended complaint without the right to do so, it is properly
5 | stricken by the Court. See, e.g., Hardin v. Wal-Mart Stores, Inc., 813 F. Supp. 2d 1167, 1181
6 || (E.D. Cal. 2011) (striking fourth amended complaint: “If an amended pleading cannot be made as
7 || of right and is filed without leave of court or consent of the opposing party, the amended pleading
8 | isa nullity and without legal effect.”); Sexton v. Spirit Airlines, Inc., Case No. 2:21-cv-00898-
9 || TLN-AC, 2022 WL 976914 (E.D. Cal. March 31, 2022) (striking amended complaint); Guthrie v.
10 | Hurwitz, Case No. 1:18-cv-00282-AWI-BAM, 2018 WL 4005261, at *1 (E.D. Cal. Aug. 20,
11 | 2018) (striking amended complaint). To the extent Plaintiff's “Amendment to Complaint” can be
12 || considered an amended complaint, it will be stricken as improperly filed.
13 Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion, ECF No. 91, for
14 || leave to amend is denied. Plaintiffs filing at ECF No. 90 is stricken. The Court will rule on all
15 || other pending motions separately.
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17 | Dated: December 29, 2022 Co
18 DENNIS M. COTA
19 UNITED STATES MAGISTRATE JUDGE
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