Muhmoud v. City Of San Jose

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION MUSTAFA MUHMOUD, Case No. 5:20-cv-08808-EJD 9 Plaintiff, ORDER GRANTING PLAINTIFF’S COUNTERMOTION FOR LEAVE TO 10 v. FILE A FIRST AMENDED COMPLAINT; MOOTING 11 CITY OF SAN JOSE, et al., DEFENDANTS’ MOTION TO DISMISS Defendants.

Re: Dkt. Nos. 35, 57 On December 11, 2020, Plaintiff Mustafa Muhmoud filed a complaint against Defendants City of San Jose, Blage Zelalich, Richard Doyle, Christopher Creech, Paul Messier, Rick Galea, Leo Prescott, Dean Whipple, Santa Clara Valley Transit Authority, Shannon Smyth-Mendoza, Kevin Balak, Swenson Development Management, Inc., Barry Swenson, Market Street Partners, LLC, Forrest Cerrato, Christian Hagen, Todd Rothbard, and Market Street Partners SJ, LLC. See Complaint for Damages, Dkt. No. 1. Plaintiff, who was representing himself pro se, asserted claims for malicious prosecution, intentional infliction of emotional distress, breach of contract, and constitutional rights violations. Certain Defendants moved to dismiss Plaintiff’s complaint.

See City Defendants’ Motion to Dismiss (“Mot.”), Dkt. No. 35. Thereafter, this Court referred Plaintiff to the Federal Pro Bono Project and stayed proceedings pending appointment of counsel.

See Dkt. No. 49. Following appointment of counsel, Plaintiff filed an opposition to the motion to dismiss and a countermotion to file a First Amended Complaint. See Plaintiff’s Opposition for Leave to File First Amended Complaint and Opposition to City Defendants’ Motion to Dismiss (“Opp.”), Dkt. No. 57. On April 12, 2022, City Defendants filed a reply to Plaintiff’s Opposition, Case No.: 5:20-cv-08808-EJD to which Plaintiff filed a reply. See City Defendants’ Reply to Plaintiff’s Opposition to Motion to Dismiss (“D Reply”), Dkt. No. 58; Plaintiff’s Reply in Support of Countermotion for Leave to Amend (“P Reply”), Dkt. No. 61. Having considered the Parties’ papers, the Court GRANTS Plaintiff’s countermotion for leave to file a First Amended Complaint and MOOTS Defendants’ motion to dismiss.1 6 I. DISCUSSION 7 “The Court should freely give leave [to amend pleadings] when justice so requires.” Fed. R. Civ. P. 15(a). Rule 15’s “policy of favoring amendments to pleadings should be applied with ‘extreme liberality.’” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). The party opposing the amendment bears the burden of showing why leave to amend should not be granted. Ziptronix, Inc. v. Ominvision Techs., 2012 WL 3155554, at *3 (N.D. Cal. Aug. 2, 2021). Additionally, the court should resolve a motion for leave to amend “with all inferences in favor of granting the motion.” Griggs v. Pace Am. Grp., 170 F.3d 877, 880 (9th Cir. 1999) (citations omitted); see also Scott v. S.F. Police Dep’t, 1995 WL 55301, at *3 (N.D. Cal. Feb. 2, 1995) (noting that the plaintiff’s pro se status and the rules permitting liberal amendment outweighed any prejudice that certain amendments would cause).

18 In the Ninth Circuit, courts consider the five Foman factors when assessing whether to grant a motion for leave to amend: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended the complaint. See Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004); Foman v. Davis, 371 22 U.S. 178, 182 (1962). Prejudice to the opposing party is the strongest factor and leave to amend should be granted absent prejudice or a “strong showing” that the other factors are met. Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

1 This Court finds this motion appropriate for decision without oral argument pursuant to Civil Local Rule 7-1(b).

Case No.: 5:20-cv-08808-EJD 1 The Foman factors weigh in favor of granting Plaintiff leave to amend. First, Plaintiff’s leave to amend is initiated in good faith. Plaintiff initiated this action without counsel, and thus amendment is needed to conform the pleadings to law. Second, amendment is not futile because it cannot be said that “no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988); see P Reply at 3–10 (arguing why leave to amend is not futile). Third, Plaintiff has not previously amended his complaint.

8 Fourth, allowing amendment would not cause undue delay. In this Circuit, courts focus on the timing in relation to the rest of the case to determine whether leave to amend should be granted. See Big Bear Lodging Ass’n v. Snow Summit, Inc., 182 F.3d 1096, 1105 (9th Cir. 1999) (“Because this litigation is still in its early stages, leave should be liberally granted unless amendment would be futile.”); Defazio v. Hollister, Inc., 2008 WL 2825045, at *2 (E.D. Cal. July 21, 2008) (“There is also no apparent prejudice to defendants in permitting the instant amendment.

14 Though this case’s origins date back over three years, this matter regrettably is still in its early litigious stages.”). Here, the early stage of the litigation weighs in favor of amendment. No case schedule has been set, no written discovery has been taken, no documents have been exchanged, no initial disclosures have been served, and several Defendants have not even appeared despite being served. See United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir. 2016).

20 Fifth, leave to amend will not prejudice Defendants. In determining whether amendment would result in prejudice, courts consider the timeliness of the amendment and whether it would delay litigation. See Poling v. Morgan, 829 F.2d 882, 886–87 (9th Cir. 1987). Here, because the case is still in the early stages of discovery, Defendants are not prejudiced by the proposed amendment. See Leighton, 833 F.2d at 187–88 (“Given that this case is still at the discovery stage with no trial date pending, nor has a pretrial conference been scheduled, there is no evidence that [defendant] would be prejudiced by the timing of the proposed amendment.”).

Case No.: 5:20-cv-08808-EJD 1 For these reasons, the Court GRANTS Plaintiffs countermotion for leave to file a First || Amended Complaint. This renders Defendants’ motion to dismiss moot. See Hynix v. || Semiconductor Inc. v. Toshiba Corp., 2006 WL 3093812, at *2 (N.D. Cal. Oct. 31, 2006) (“In || view of Rule 15(a)’s permissive standard, courts ordinarily defer consideration of challenges to the merits of a proposed amended pleading until after leave to amend is granted and the amended || pleading is filed.”).

7 I. CONCLUSION 8 The Court GRANTS Plaintiff's countermotion for leave to file a First Amended |} Complaint and finds Defendant’s motion to dismiss MOOT. Plaintiff shall file his First Amended || Complaint within 30 days of this Order. The Case Management Conference scheduled for June 2, 11 2022, is CONTINUED July 14, 2022, with a joint statement due July 5, 2022.

12 IT IS SO ORDERED.

13 || Dated: May 16, 2022 2 EDWARD J. DAVILA a 16 United States District Judge = 17 Z 18 Case No.: 5:20-cv-08808-EJD || ORDER GRANTING PLAINTIFF’S COUNTERMOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT; MOOTING DEFENDANTS’ MOTION TO DISMISS