Summary
denying summary judgment with respect to a qualified immunity defense on an excessive force claim because "there are several disputed issues of fact regarding the length of the search, the use of handcuffs and the use of guns, [so] the Court finds this issue inappropriate for disposition on summary judgment"
Summary of this case from Luong v. City & Cnty. of S.F.Opinion
No. C09-1613 BZ, and Consolidated Case, No. C09-4757 BZ.
April 14, 2010
ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
Before the Court is plaintiffs' motion for leave to file a second amended complaint. Because defendants have failed to show any prejudice, undue delay, bad faith, or futility, the motion is GRANTED in its entirety.
"In determining whether amendments are appropriate, courts commonly consider four factors: 1) bad faith of the moving party, 2) delay in the proceedings, 3) prejudice to the nonmoving party, and 4) futility of the amendment." Genentech, Inc. v. Abbot Laboratories, 127 F.R.D. 529, 530 (N.D.Cal. 1989) citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). "The party opposing amendment bears the burden of showing why amendment should not be granted." Board of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 2008 WL 624771, at *6 (N.D.Cal. 2008).
Here, none of the factors weigh in favor of denying the motion. Though defendants have alleged bad faith, they have neither cited authority nor submitted any evidence of bad faith. Further, this amendment will not cause any substantial delay in the proceedings, as the June trial date was vacated on APRIL 5, 2010. Doc. No. 82. Defendants argue that they are prejudiced but decline to articulate how. As fact discovery will remain closed and the time to file dispositive motions has been extended, I find that the amendment will not prejudice the defendants. Finally, defendants do not argue that the amendment is futile.
IT IS THEREFORE ORDERED as follows:
1. I find no need for further argument.
2. Plaintiffs' motion for leave to file a second amended complaint is GRANTED. Plaintiffs SHALL file an amended complaint by APRIL 20, 2010. Defendants SHALL file an answer by MAY 10, 2010.
3. Dates:
Trial Date: Monday, MARCH 14, 2011, 8:30 a.m.
Pretrial Conference: Tuesday, FEBRUARY 22, 2011, 4:00 p.m.
Last Day for Expert Discovery: JUNE 18, 2010
4. Dispositive Motions:
Defendants to file by June 23, 2010.
Plaintiffs to file opposition and any cross motion by JULY 12, 2010.
Defendants to file reply and opposition to any motion plaintiffs file by JULY 26, 2010.
Plaintiffs to file reply on their motion by AUGUST 2, 2010.
Hearing AUGUST 31, 2010, AT 1:30 P.M., in Courtroom G, 15th Floor, Federal Building, 450 Golden Gate Avenue, San Francisco, California 94102.
The parties are reminded to comply with the Court's procedures for summary judgment motions found in the earlier Pretrial Scheduling Order.
5. The parties SHALL notify the court if the case settles.