Verhines v. Weber

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA

10 ANDREW VERHINES, Case No. 1:24-cv-01111-KES-EPG 11 Plaintiff, ORDER GRANTING MOTION FOR 12 v. LEAVE TO FILE FIRST AMENDED COMPLAINT SHIRLEY N. WEBER, (ECF No. 30) 14 Defendant.

16 Plaintiff Andrew Verhines proceeds pro se and in forma pauperis in this civil action.

17 (ECF Nos. 1, 3). He alleges that California’s filing fee structure for candidates seeking to run in the primary for the office of House of Representatives in the United States Congress violates the First and the Fourteenth Amendments. (ECF No. 1) 20 Now before the Court is Plaintiff’s motion for leave to file a first amended complaint, which Plaintiff states “refines the claims, strengthens key allegations, and ensures an accurate presentation of the issues.” (ECF No. 30, p. 1; see ECF No. 29). Most notably, Plaintiff’s proposed amended complaint adds allegations concerning the purported failure rate (99.8%) of candidates who attempt to access the ballot by obtaining signatures as opposed to paying the filing fee. (ECF No. 29, p. 2).

26 Defendant has not timely opposed the motion under the Court’s Local Rules, and the “failure to file a timely opposition may . . . be construed by the Court as a nonopposition to the motion.” Local Rule 230(c).

1 Under Rule 15(a), a party may amend a pleading once as a matter of course within twenty-one days of service, or if the pleading is one to which a response is required, twenty-one days after service of a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1)(B). “In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

6 Granting or denying leave to amend is in the discretion of the Court. Swanson v. United States Forest Service, 87 F.3d 339, 343 (9th Cir. 1996). Leave should be “freely give[n] . . .

8 when justice so requires,” Fed. R. Civ. P. 15(a)(2). “In exercising this discretion, a court must be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).

11 Consequently, the policy favoring the grant of leave to amend is applied with “extreme liberality.” Id. (citation omitted). “Five factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the plaintiff has previously amended the complaint.” Desertrain v. City of L.A., 754 F.3d 1147, 1154 (9th Cir. 2014) (quoting Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)).

17 With these standards in mind, the Court will grant Plaintiff leave to file a first amended complaint. There is no indication of bad faith or undue delay and it is still early on in the litigation. Additionally, Defendant has not argued that amendment would be prejudicial, nor does the Court find prejudice based on the circumstances of the case. Further, amendment does not appear to be clearly futile. Lastly, Plaintiff has not previously amended his complaint.

22 However, the Court notes that Plaintiff’s proposed amended complaint is not verified, meaning that it does not contain a statement that the allegations are true and correct under penalty of perjury. (ECF No. 29). Plaintiff’s is directed to 28 U.S.C. § 1746, which provides that a filing may be verified as follows: “If executed within the United States, its territories, possessions, or commonwealths” by adding a statement substantially similar to the following: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).” The Court will set a deadline for Plaintiff to file a || verified version of his proposed amended complaint. (ECF No. 29).

2 Accordingly, IT IS ORDERED as follows: 3 1. Plaintiff's motion for leave to file a first amended complaint (ECF No. 30) is 4 granted.

5 2. Plaintiff shall file a verified version of his proposed first amended complaint 6 (ECF No. 29) within 14 days of the entry of this order.

7 3. Defendant shall respond to the first amended complaint (once filed) within the 8 time provided under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 9 15(a). ul IT IS SO ORDERED.

12 Dated: _ April 15, 2025 □□□ hey 13 UNITED STATES MAGISTRATE JUDGE