Opinion
C21-05068-JCC-SKV
12-14-2021
JUSTIN ALLEN DAVEY, Plaintiff, v. PIERCE COUNTY COUNCIL, et al., Defendant.
ORDER DENYING MOTION FOR LEAVE TO FILE AMENDED COMPLAINT WITHOUT PREJUDICE AND WTH LEAVE TO RE-FILE
S. KATE VAUGHAN UNITED STATES MAGISTRATE JUDGE
This is a 42 U.S.C. § 1983 prisoner civil rights action. Currently pending before the Court is Plaintiff's motion for leave to file an amended complaint pursuant to Fed.R.Civ.P. 15(a)(2). Dkt. 50. Plaintiff's motion appears to indicate, in part, that he had been unable to file an amended complaint previously due to inadequate access to the law library while he was incarcerated at Washington Correction Center. Id.
Federal Rule of Civil Procedure 15(a), provides:
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.Fed. R. Civ. P. 15. Although this is a liberal standard, leave to amend is discretionary and courts have identified a number of factors to consider when determining whether leave is appropriate. See, e.g., Foman v. Davis, 371 U.S. 178, 182 (1962). These factors include undue prejudice, futility, and undue delay. Id.
Because it has been more than 21 days since Defendants filed their motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), Plaintiff may no longer amend as a matter of course and may do so only with Defendant's written consent or the Court's leave. Fed.R.Civ.P. 15(a); see Dkt. 33.
Local Civil Rule (LCR) 15 also requires a party who is seeking to amend a pleading to attach the proposed amended pleading as an exhibit to the motion. LCR 15. The party must also indicate how the proposed amended pleading differs from the original pleading by highlighting the text that is added and striking through part that is deleted. Id. This rule allows the Court and the parties to see the proposed amended complaint and evaluate whether the leave to amend is appropriate.
Here, Plaintiff seeks leave of the Court to file an amended complaint but fails to include a copy of the proposed amended complaint with his motion. Dkt. 50. As such, Defendants would be unable to properly respond to Plaintiff's motion and the Court is unable to properly consider the motion and determine whether amendment is appropriate.
Accordingly, it is hereby ORDERED:
(1) Plaintiff's motion for leave to file an amended complaint, Dkt. 50, is DENIED without prejudice as he fails to include a copy of his proposed amended complaint with his motion pursuant to LCR 15. Plaintiff is granted leave to re-file his motion for leave to amend, but he must include a proposed second amended complaint with his motion
so that the Defendants and properly respond and the Court can properly consider whether amendment is appropriate.
(2) The Court also notes that it is unclear from Plaintiff's motion whether he is aware that he did, in fact, previously file an amended complaint, Dkt. 26, which is now considered the operative complaint in this action. For clarification and efficiency purposes, the Clerk is directed to send Plaintiff a copy of his amended complaint, Dkt. 26, a copy of the docket sheet in this case, and a copy of the Court's form 42 U.S.C. § 1983 civil rights complaint. These documents will enable Plaintiff to review his current amended complaint and determine whether he believes it is necessary to re-file his motion for leave to amend his complaint further, or whether his current amended complaint contains all causes of action, facts and arguments he intends to pursue in this action. Plaintiff is advised that if he moves again for leave to amend his complaint and the motion is granted, his proposed second amended complaint will act as a complete substitute for the original complaint, and not as a supplement. Therefore, the proposed second amended complaint must be complete in itself and contain all causes of action, facts, and argument Plaintiff intends to pursue in this action. Any facts and causes of action alleged in the original complaint that are not alleged in the second amended complaint are waived.
(3) The Clerk is directed to send copies of this order to the parties and to the Honorable John C. Coughenour.