Opinion
2:08-cv-01493-GEB-KJM.
June 5, 2009
ORDER
This matter was determined to be suitable for decision without oral argument. L.R. 78-230(h).
Federal Defendants move for summary judgment on all claims in Plaintiff's complaint arguing that qualified immunity shields them from being exposed to liability for the alleged claims. Plaintiff opposes the motion and moves for leave to file a Second Amended Complaint ("SAC") arguing leave should be granted because he has shown good cause justifying the amendment under Federal Rule of Civil Procedure 16(b). Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Plaintiff explains this good cause consists of discovery that conflicts with earlier discovery Plaintiff received on the same point. Plaintiff's showing is sufficient to justify granting the leave he seeks. However, the SAC Plaintiff seeks to file contains a battery claim against the United States, which is not authorized under the Federal Tort Claims Act. 28 U.S.C. § 2680(h) (excluding battery). Therefore, Plaintiff does not have leave to file this claim, but Plaintiff has five days leave within which he can file the remainder of the claims in his proposed amended. This ruling moots the federal Defendants' motion for summary judgment on the basis of qualified immunity, since that motion concerns a complaint which will be amended. Further, in light of the nature of the conflict in the discovery identified by Plaintiff, the federal Defendants' motion to stay discovery is denied.