“Leave to amend need not be granted ... where the amendment 19 would be futile.”
How later courts described this case
- “Leave to amend need not be granted ... where the amendment 19 would be futile.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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Case No.: 25cv0820 TWR (BLM)
11 ROBERT EMERT,
12 Petitioner, REPORT AND RECOMMENDATION FOR
ORDER GRANTING PETITIONER’S
13 v. MOTION FOR LEAVE TO FILE
AMENDED PETITION
14 SAN DIEGO PROBATION DEP’T,
15 Respondent. [ECF NO. 10]
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18 This Report and Recommendation is submitted to United States District Court Judge Todd
19 W. Robinson pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United
20 States District Court for the Southern District of California. On April 7, 2025, Petitioner Robert
21 Emert (“Petitioner”), proceeding and , filed his Petition for Writ of
22 Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 challenging his San Diego County
23 Superior Court convictions. ECF No. 1. On May 16, 2025, this Court issued an order requiring a
24 response to the Petition and issuing a briefing schedule. ECF No. 8. Before a response was
25 required to be filed by Respondent, Petitioner filed a Motion for Leave to File Amended Petition
26 for Writ of Habeas Corpus (“Mot.”) which is currently before this Court. ECF No. 10. Petitioner
27 has also submitted a proposed Amended Petition. Id., Ex. A. For the reasons discussed below,
1 I. DISCUSSION
2 A. Legal Standard
3 A federal habeas petition “may be amended or supplemented as provided by the rules of
4 procedure applicable to civil actions.” 28 U.S.C. § 2242. Pursuant to Federal Rule of Civil
5 Procedure 15, if a party seeks leave to amend more than twenty-one (21) days after serving the
6 original pleading, “a party may amend its pleading only with the opposing party’s written consent
7 or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The “court should freely give leave when justice
8 so requires.” Id.
9 “When considering whether to grant leave to amend, a district court should consider
10 several factors including undue delay, the movant's bad faith or dilatory motive, repeated failure
11 to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party,
12 and futility.” Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020) (citing Foman
13 v. Davis, 371 U.S. 178, 182 (1962)). “Absent prejudice, or a strong showing of any of the
14 remaining ... factors, there exists a under Rule 15(a) in favor of granting leave to
15 amend.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (emphasis
16 in original). Nevertheless, “[f]utility alone can justify the denial of a motion for leave to amend.”
17 Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004); see also Townsend v. Univ. of Alaska, 543
18 F.3d 478, 485 (9th Cir. 2008) (“Leave to amend need not be granted ... where the amendment
19 would be futile.”), cert. denied, 556 U.S. 1166 (2009).
20 B. Analysis
21 Petitioner moves to amend his Petition to “more fully articulate” the factual basis for the
22 claims he is presenting. Mot. at 5. Petitioner further contends that the amendment should be
23 permitted because this is his “first request to amend, it is made early in the proceedings before
24 Respondent has filed a responsive pleading, and the amendment is intended to enhance clarity,
25 strengthen the presentation of meritorious claims, and is not futile.” Id.
26 The Court finds that all five factors it must consider in determining whether to grant leave
27 to amend weigh in favor of granting Petitioner’s request. See Brown, 953 F.3d at 574. First,
1 on behalf of the Petitioner. This matter has been pending in this Court for approximately two
2 months which demonstrates a lack of undue delay and dilatory motive. Petitioner also states
3 that this amended petition does not “raise new, unexhausted claims,” Mot. at 7, which also
4 supports a finding of a lack of bad faith in seeking to file an amended petition.
5 Second, Petitioner has not repeatedly failed to cure deficiencies identified by the Court.
6 Petitioner indicates in his motion that this amended petition is in response to the Court’s May
7 16, 2025 Order requiring a response to the petition from Respondents. Mot. at 8. In the Court’s
8 May Order, the Court did not direct Petitioner to file an amended petition but Petitioner’s request
9 for judicial notice of the contents of a USB drive he lodged with the Court was denied and the
10 Court declined to “direct the Clerk of Court to upload the files to CM/ECF.” ECF No. 8 at 4. In
11 Petitioner’s motion he responds to the Court’s Order by stating that even though amendment
12 was not required the “original petition “substantially [relied] on externally lodged exhibits that
13 are not yet formally part of the reviewable record for merits determination by this Court” and
14 this “may not be the most effective method for presenting the claims.” Mot. at 6. As a result,
15 Plaintiff’s proposed amended petition includes a more formalized structure of his claims and the
16 evidence, as well as legal arguments in support of each claim. This weighs in favor of finding
17 that Petitioner has not demonstrated a pattern of “repeated failure to cure deficiencies by
18 amendments previously allowed.” Brown, 953 F.3d at 574.
19 Third, there is no “undue prejudice to the opposing party.” Id. Respondents have only
20 recently been ordered to respond to the petition by July 14, 2025. ECF No. 8 at 5. In addition,
21 the claims made in the amended petition are substantially similar to the claims made in the
22 original petition. Accordingly, there is no evidence in the record of any prejudice to the
23 Respondents.
24 Finally, the Court finds that Petitioner’s amended petition is not futile. Brown, 953 F.3d
25 at 574. This Court has already determined in its preliminary review that this Court has
26 jurisdiction over the original petition, see ECF No. 8 at 3-4, and the amended petition contains
27 the identical claims made in the original petition. Accordingly, the Court concludes that granting
1 In light of finding a lack of bad faith, futility, and prejudice to the Respondent, along with
2 rule requiring the Court to freely give leave to amend, the Court finds that the balance of
3 || the five factors weighs in favor of permitting amendment.
4 II. CONCLUSION AND RECOMMENDATION
5 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Judge issue
6 |}and Order: (1) approving and adopting this Report and Recommendation; (2) granting
7 || Petitioner's Motion for Leave to File Amended Petition for Writ of Habeas [ECF No. 21]; (3)
8 || directing the Clerk of Court to file the Amended Petition, ECF No. 10, Ex. A, as Petitioner’s First
9 || Amended Petition for Writ of Habeas Corpus; and (4) grant Respondent an extension of time to
10 || respond to the Amended Petition in accordance with the Court’s May 16, 2025 Order.
11 IT IS HEREBY ORDERED that no later than July 2, 2025, any party to this action may
12 || file written objections with this Court and serve a copy on all parties. The document should be
13 || captioned “Objections to Report and Recommendation.”
14 IT IS FURTHERED ORDERED that any reply to the objections shall be filed with the
15 || Court and served on all parties no later than July 16, 2025. The parties are advised that failure
16 file objections within the specified time may waive the right to raise those objections on
17 || appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).
18 IT IS SO ORDERED.
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20 Dated: 6/18/2025 lobe Mager
71 Hon. Barbara L. Major
United States Maqistrate Judde
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