London Wallace v. City of Fresno

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA LONDON WALLACE, Case No. 1:19-cv-01199-AWI-SAB 12 Plaintiff, ORDER GRANTING UNOPPOSED MOTION FOR LEAVE TO FILE 13 v. AMENDED COMPLAINT; VACATING NOVEMBER 20, 2019 HEARING; AND CITY OF FRESNO, et al., CONTINUING THE MANDATORY SCHEDULING CONFERENCE 15 Defendants. (ECF Nos. 6, 9) ORDER REQUIRING PLAINTIFF TO FILE 17 A PETITION FOR APPOINTMENT OF GUARDIAN AD LITEM 19 London Wallace (“Plaintiff”) filed this civil rights action pursuant to 42 U.S.C. § 1983.

20 Currently before the Court is Plaintiff’s motion for leave to file an amended complaint to identify a Doe defendant in this action.

22 The Court, having reviewed the record, finds this matter suitable for decision without oral argument. See Local Rule 230(g). Accordingly, the previously scheduled hearing set on November 20, 2019, will be vacated and the parties will not be required to appear at that time.

25 A. Motion for Leave to File Amended Complaint 26 Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). The Ninth Circuit has held that “[t]his policy is to be applied with extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 1 F.2d 1074, 1079 (9th Cir. 1990); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). “In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be ‘freely given.’ ” Eminence Capital, LLC, 316 F.3d at 1052 (quoting Foman v. Davis, 371 U.S. 7 178, 182 (1962)).

8 In considering the factors, the Court finds that leave to amend should be granted.

9 Plaintiff has not previously filed an amended complaint. The matter was just recently removed from state court and a scheduling conference is set to be held on November 5, 2019. Finally, Defendants do not oppose the request so there is no argument that the request is made in bad faith or that Plaintiff unnecessarily delayed in seeking to amend nor have Defendants argued that they will suffer any prejudice by virtue of the amendment.

14 As the motion for leave to amend is being granted, the Court shall continue the mandatory scheduling conference in this matter to allow for service on the new defendant and for a responsive pleading to be filed.

17 B. Appointment of Guardian Ad Litem 18 Additionally, Plaintiff is a minor and the complaint states that the action is brought by his guardian ad litem. Pursuant to the Local Rules of the Eastern District of California, upon commencing this action on behalf of a minor, “the attorney representing the minor or incompetent person shall present (1) appropriate evidence of the appointment of a representative for the minor or incompetent person under state law or (2) a motion for the appointment of a guardian ad litem by the Court, or, (3) a showing satisfactory to the Court that no such appointment is necessary to ensure adequate representation of the minor . . . .” L.R. 202(a).

25 Accordingly, Plaintiffs’ counsel shall file evidence that the representative has been appointed under state law or a petition for appointment of a guardian ad litem that meets the requirements of Rule 202.

1 C. Order 2 Based on the forgoing, IT IS HEREBY ORDERED that: 3 1. Plaintiffs unopposed motion for leave to file an amended complaint is 4 GRANTED and Plaintiff shall file the amended complaint within five (5) days of 5 the date of entry of this order; 6 2. Defendants City of Fresno, Fresno Police Department and Christopher Martinez 7 shall file a responsive pleading within fourteen (14) days of the filing of the 8 amended complaint; 9 3. The scheduling conference set for November 5, 2019 is CONTINUED to 10 January 7, 2020, at 10:00 a.m. in Courtroom 9; and ll 4, Within fourteen (14) days of the date of service of this order, Plaintiff shall file 12 proof that a representative has been appointed under state law or a petition for 13 appointment of a guardian ad litem.

15 IT IS SO ORDERED. OF. ee | Dated: _October 3, 2019 __ OO 4 UNITED STATES MAGISTRATE JUDGE