Free Order on Motion to Amend/Correct - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Linda Vega, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On March 19, 2004, Plaintiff filed the instant pro se action pursuant to 42 U.S.C. § 1983. (Docket 1). On July 19, 2004, the Court issued an order dismissing Counts II, III, and IV of Plaintiff's Complaint. (Docket 6). On June 22, 2006, Plaintiff filed a Motion to Amend her Complaint. (Docket 37). On July 6, 2006, Plaintiff filed a Motion for Leave to File a Corrected Motion and Amended Complaint. (Docket 42). The latter motion (Docket 42) sought to correct a typographical error in the first motion (Docket 37). Filed simultaneously with Docket 42 were a corrected Lodged Amended Complaint (Docket 44) and a Lodged Proposed Motion for Leave to File Amended Complaint (Docket 43). Plaintiff's Motion to Correct the Motion and Amended Complaint (Docket 42) is granted; the Court will rule on the Dockets 43 and 44. On June 30, 2006, Defendant filed Response in Opposition to Plaintiff's Motion to Amend the Complaint. (Docket 40). Because Dockets 43 and 44 do not make a substantive
Case 2:04-cv-00558-EHC Document 45 Filed 07/25/2006 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Karin Jean Smith, Plaintiff, vs.

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No. CV 04-558-PHX-EHC(CRP) ORDER

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change to Plaintiff's original Motion to Amend (Docket 37) and Lodged Proposed Complaint (Docket 38), Defendant's Response will stand as to Dockets 43 and 44. Defendant opposed the Motion to Amend because it was submitted late in the litigation process. (Docket 40). The parties have completed discovery and dispositive motions are due Monday, August 28, 2006. Defendant further cites Plaintiff's failure to comply with LRCiv 15.1in her opposition to the Motion to Amend. Federal Rule of Civil Procedure 15(a) provides that "leave shall be freely given when justice so requires." Determination of whether leave to amend a complaint should be granted or denied is within the discretion of the court. In determining whether or not to grant leave to amend, the court must consider (1) prejudice to the opposing party; (2) whether leave to amend is being sought in bad faith; (3) whether granting of the leave to amend will produce an undue delay in litigation; and (4) whether or not the amendment would be futile. AmerisourceBergen Corp. v. Dialysist West, Inc., 445 F.3d 1132, 1136 (9th Cir.2006), citing Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir.1990). Plaintiff's Amended Complaint (Docket 44) contains only one count, the same count contained in Count I of the original Complaint (Docket 1). Count I of the Amended Complaint alleges that Defendant Vega retaliated against Plaintiff for lodging a complaint against Defendant. (Docket 44). This is the same allegation made in Count I of the original Complaint. (Docket 1). Count I of the Amended Complaint alleges that Defendant violated Plaintiff's First Amendment Rights. (Docket 44). This is the same alleged violation of rights found in Count I of the original Complaint. (Docket 1). Plaintiff has eliminated Counts II, III and IV1 of her Complaint and has simply consolidated the facts of her original complaint under Count I of the Amended Complaint. The Defendant will not have to prepare to defend a new claim and had adequate notice of the facts alleged by the Plaintiff as they were all contained in her original complaint. The Court therefore finds that the Defendant is not

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prejudiced by Plaintiff's Amended Complaint. The Court further finds that Plaintiff has not acted in bad faith. Plaintiff has filed her motion late in the litigation process. However, undue delay alone is not a sufficient basis to deny a motion to amend. Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712-13 (9th Cir.2001) citing Bowles v. Reade, 198 F.3d 752, 758 (9th Cir.1999). Because Plaintiff has not alleged any new claims or facts, Defendant should not need to perform additional discovery and there is no reason to foresee that the Amended Complaint would interfere with existing deadlines. As such, the Court finds that the Amended Complaint should produce no delay in the litigation process. Because Count I of Plaintiff's Complaint is unchanged and it has already gone through the mandatory screening process, the Court finds that it is not a futile amendment. IT IS THEREFORE ORDERED granting Plaintiff's Motion to Amend Complaint (Docket 43). IT IS FURTHER ORDERED that all existing deadlines shall remain in effect. Dispositive motions are due on or before August 28, 2006. DATED this 24th day of July, 2006.

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