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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 LONDON WALLACE, Case No. 1:19-cv-01199-AWI-SAB

12 Plaintiff, ORDER GRANTING PLAINTIFF’S

MOTION FOR LEAVE TO AMEND THE

13 v. SECOND AMENDED COMPLAINT TO

NAME DOE DEFENDANT 2, OFFICER

14 CITY OF FRESNO, et al., MICHAEL AGUILAR, AND DOE

DEFENDANT 3, OFFICER PATRICK

15 Defendants. FELLER AND VACATING JULY 15, 2020

HEARING

16 (ECF Nos. 37, 38) 17

THREE DAY DEADLINE

18 19 London Wallace (“Plaintiff”) filed this civil rights action pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s unopposed motion for leave to amend the second 21 amended complaint to name doe defendant 2, Officer Michael Aguilar, and doe defendant 3, 22 Officer Patrick Feller. 23 The Court, having reviewed the record, finds this matter suitable for decision without oral 24 argument. See Local Rule 230(g). Accordingly, the previously scheduled hearing set on July 15, 25 2020 will be vacated and the parties will not be required to appear at that time. 26 I. 27 BACKGROUND On January 23, 2019, a probation search was conducted at 250 N. Calaveras Street, 1 Apartment 204, in Fresno, California. (Compl. 3,1 ECF No. 1-2.) During the search, all 2 residents, including London Wallace (“Plaintiff”) were forced outside the residence and searched 3 and detained. (Id. at 4.) Plaintiff alleges that he was ordered back inside the apartment and was 4 attacked, punched, and tackled resulting in serious injuries. (Id.) Plaintiff filed this action in the 5 Superior Court of California, County of Fresno, alleging violations of his civil rights and 6 California law. 7 On August 30, 2019, the City of Fresno and Officer Christopher Martinez removed the 8 matter to the Eastern District of California. (ECF No. 1.) On September 27, 2019, Plaintiff filed 9 a motion for leave to file an amended complaint that was unopposed by Defendants City of 10 Fresno and Christopher Martinez. (ECF Nos. 6, 9.) On October 3, 2019, Plaintiff’s motion for 11 leave to amend was granted and Plaintiff filed a first amended complaint adding Ricardo Loza as 12 a defendant on October 4, 2019. (ECF Nos. 10, 11.) 13 A motion to dismiss was filed on October 16, 2019 by Defendants City of Fresno and 14 Martinez. (ECF No. 17.) On October 17, 2019, a stipulation was filed to dismiss Plaintiff’s 15 second and seventh causes of action from the first amended complaint. (ECF No. 18.) On 16 October 18, 2019, the second and seventh causes of action were dismissed. (ECF No. 19.) 17 On November 20, 2019, an order issued granting Defendants’ motion to dismiss and the 18 third cause of action was dismissed from the first amended complaint with leave to amend. 19 (ECF No. 26.) On December 9, 2019, Plaintiff filed a second amended complaint. (ECF No. 20 27.) Defendants City of Fresno, Loza, and Martinez filed an answer to the second amended 21 complaint on December 23, 2019. (ECF No. 29.) 22 On February 11, 2020, a scheduling order issued setting the pretrial and trial dates in this 23 action. (ECF No. 33.) Pursuant to the scheduling order, any motion or stipulation for leave to 24 amend the complaint was to be filed by June 12, 2020. (Id. at 2.) On June 9, 2020, Plaintiff filed 25 a motion for leave to amend the second amended complaint to name doe defendant 2, Officer 26 Michael Aguilar, and doe defendant 3, Officer Patrick Feller and an amended motion. (ECF 27 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 1 Nos. 36, 37.) On June 17, 2020, Defendants City of Fresno, Fresno Police Department, 2 Martinez, and Loza filed a statement of non-opposition to Plaintiff’s motion for leave to amend 3 the second amended complaint to name doe defendant 2, Officer Michael Aguilar, and doe 4 defendant 3, Officer Patrick Feller. (ECF No. 38.) 5 II. 6 DISCUSSION 7 Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be freely 8 given when justice so requires. Fed. R. Civ. P. 15(a)(2). The Ninth Circuit has held that “[t]his 9 policy is to be applied with extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 10 F.2d 1074, 1079 (9th Cir. 1990); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 11 (9th Cir. 2003). “In the absence of any apparent or declared reason—such as undue delay, bad 12 faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by 13 amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of 14 the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be 15 ‘freely given.’ ” Eminence Capital, LLC, 316 F.3d at 1052 (quoting Foman v. Davis, 371 U.S. 16 178, 182 (1962)). 17 Here, Plaintiff seeks leave to file a third amended complaint to name two previously 18 unidentified defendants. Plaintiff asserts that he discovered the names of two of the unidentified 19 officers involved in the incident through police reports that were recently produced in discovery. 20 Defendants have no opposition to the motion for leave to file an amended complaint.2 21 In considering the factors, the Court finds that leave to amend should be granted. 22 Although Plaintiff has previously been granted leave to amend and has filed two amended 23 complaints, the names of the unidentified defendants were recently discovered. The motion was 24 filed prior to the deadline for amendment of the complaint established by the scheduling order. 25 Finally, Defendants do not oppose the request so there is no suggestion that the request is made

26 2 The Court notes that this is the second motion seeking leave to amend that has been filed by Plaintiff in this action which has been unopposed by Defendants. It is unclear why Plaintiff has chosen to file a motion rather than seek a 27 stipulation from the defendants. Should this matter proceed to trial and attorney fees be sought by Plaintiff, the court should consider this in addressing the reasonableness of the time expended in this action for any award of wOow 4:49 VV VLE OAD MUO OO ee AY OT Mt

1 | in bad faith or that Plaintiff unnecessarily delayed in seeking to amend. Defendants have not 2 | demonstrated that they will suffer any prejudice by virtue of the amendment. The Court finds 3 | that good cause exists to grant Plaintiff leave to file a third amended complaint. 4 Il. 5 CONCLUSION AND ORDER 6 The Court finds that good cause exists to grant Plaintiffs motion for leave to file a third 7 | amended complaint to name two previously unidentified defendants. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff's motion for leave to amend the second amended complaint to name doe 10 defendant 2, Officer Michael Aguilar, and doe defendant 3, Officer Patrick Feller 11 is GRANTED; 12 2. Plaintiff SHALL FILE his third amended complaint within three (3) days of the 13 date of service of this order; and 14 3. The July 15, 2020 hearing on Plaintiffs motion for leave to file an amended 15 complaint is VACATED. 16 17 IT IS SO ORDERED. OF. ee 1g | Dated: _ June 23, 2020

9 UNITED STATES MAGISTRATE JUDGE

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