Morris et al v. City of Fresno et al, No. 1:2008cv01422 - Document 103 (E.D. Cal. 2010)
Court Description: MEMORANDUM DECISION and ORDER Regarding Defendants' 98 Motion to Strike, signed by Judge Oliver W. Wanger on 12/2/2010. (Gaumnitz, R)
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Morris et al v. City of Fresno et al Doc. 103 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 5 6 7 ROBERT MORRIS and MICHELLE MORRIS, 8 Plaintiffs, v. 9 10 08-CV-01422-OWW-GSA MEMORANDUM DECISION AND ORDER REGARDING DEFENDANTS’ MOTION TO STRIKE (Doc. 98) FRESNO POLICE DEPARTMENT, OFFICERS CHRISTOPHER LONG, JEREMY DEMOSS, 11 Defendants. 12 13 14 15 16 17 18 19 20 21 22 I. Plaintiffs Robert Morris and Michelle Morris (“Plaintiffs”) are proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. 25 26 27 Plaintiffs filed a seventh amended complaint (“SAC”) on September 14, 2010. (Doc. 82). Defendants filed an answer to the SAC on September 27, 2010. Currently before the court is Defendants’ motion to strike a document entitled “seventh amended complaint” filed by Plaintiffs on October 6, 2010. (Docs. 98). Plaintiffs filed opposition to Defendants’ motion to strike on November 12, 2010. 23 24 INTRODUCTION II. (Doc. 100). FACTUAL BACKGROUND Plaintiffs filed their initial complaint on September 23, 2008. (Doc. 1). After several incarnations of the complaint were dismissed, Plaintiffs filed a sixth amended complaint on June 24, 2010. (Doc. 82). 28 1 Dockets.Justia.com 1 Defendants’ motion to dismiss the sixth amended complaint was 2 heard on September 13, 2010. 3 court told Plaintiffs on the record that their sixth amended 4 complaint was dismissed, with leave to amend. 5 court advised the parties that it would issue a written decision on 6 the motion to dismiss, and that Plaintiff would have fourteen days 7 from the date of service of the written decision to file an amended 8 complaint. 9 Plaintiffs filed the SAC. 10 (Doc. 88). During the September 13 hearing, the (Doc. 88). The The next day, on September 14, 2010, (Doc. 89). The court issued a Memorandum Decision dismissing Plaintiffs’ 11 sixth (Doc. 90).1 12 Defendants filed an answer to the SAC on September 27, 2010. (Doc. 13 92). amended complaint on September 21, 2010. 14 On October 6, 2010, Plaintiffs’ filed a document entitled 15 “seventh amended complaint” and a “request to the court and amended 16 complaint as ordered” (“the Request”). (Docs. 96, 97). The Request 17 appears to be a request for leave to file an eighth amended 18 complaint. (See Doc. 97). III. LEGAL STANDARD. 19 20 21 A. Motion to Strike Rule 12(f) empowers a court to strike "any redundant, 22 immaterial, impertinent, or scandalous matter." Motions to strike 23 may be granted if "it is clear that the matter to be stricken could 24 have no possible bearing on the subject matter of the litigation." 25 LeDuc v. Kentucky Central Life Ins. Co., 814 F.Supp. 820, 830 (N.D. 26 Cal. 1992); Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 27 28 1 The order officially dismissing the sixth amended complaint issued on September 29, 2010, (Doc. 94). 2 1 1339 (N.D. Cal. 1991). "[T]he function of a [F.R.Civ.P.] 12(f) 2 motion to strike is to avoid the expenditure of time and money that 3 must arise from litigating spurious issues by dispensing with those 4 issues prior to trial." Sidney-Vinstein v. A.H. Robins Co., 697 5 F.2d 880, 885 (9th Cir. 1983). 6 B. Leave to Amend 7 8 Federal Rule of Civil Procedure 15(a) provides in pertinent part: 9 14 (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. 15 Fed. R. Civ. P. 15(a). Rule 15's policy of favoring amendments to 16 pleadings should be applied with extreme liberality, however, four 17 factors guide a court’s inquiry: 10 11 12 13 18 21 Four factors are commonly used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment. Loehr, 743 F.2d at 1319; Howey, 481 F.2d at 1190. These factors, however, are not of equal weight in that delay, by itself, is insufficient to justify denial of leave to amend. 22 DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). 23 A district court's discretion over amendments is especially broad 24 where 25 opportunities to amend his complaint. 26 omitted). 27 /// 28 /// 19 20 the court has already given 3 a plaintiff one or more Id. at 186 n.3 (citation IV. DISCUSSION. 1 2 The court construes the Request filed by Plaintiffs on October 3 6, 2010 as a request for leave to file an eighth amended complaint. 4 Accordingly, whether Defendants’ motion to strike should be granted 5 depends on whether Plaintiff’s should be given leave to file an 6 eighth amended complaint.2 7 The Request sets forth two grounds for obtaining leave to 8 amend: (1) the Memorandum Decision warned Plaintiff to comply fully 9 with the court’s orders or risk sanctions; and (2) at the time 10 Plaintiffs filed the SAC, they did not have the benefit of the 11 Memorandum Decision’s guidance. 12 Plaintiffs’ purported justifications for seeking leave to amend 13 have merit. 14 fully aware of the consequences of filing the SAC without the 15 benefit of the Memorandum Decision. (Request at 1). Neither of Plaintiffs do not face sanctions, and Plaintiffs were 16 On December 8, 2009, the court held a hearing on Defendants’ 17 motion to dismiss Plaintiffs’ third amended complaint and told 18 Plaitniffs that the complaint would be dismissed with leave to 19 amend. 20 complaint before the court issued its written decision dismissing 21 the third amended complaint. On January 26, 2010, the court struck 22 the fourth amended complaint due to the fact that Plaintiffs 23 prematurely filed it before the court issued its written decision 24 on the motion to dismiss the third amended complaint. 25 3). During a subsequent hearing on a motion to dismiss Plaintiffs’ 26 fifth amended complaint, the court explained to Plaintiffs that the On December 30, 2009 Plaintiffs filed a fourth amended (Doc. 63 at 27 28 2 As Defendants point out, Plaintiffs failed to comply with the local rules applicable to motions for leave to file an amended complaint. 4 1 fourth amended complaint filed on December 30, 2009 was striken 2 because it was filed before the issuance of a written decision and 3 did not address the deficiencies that required dismissal of the 4 third amended complaint. 5 September 14, 2010, they knew that filing the SAC before issuance 6 of a written decision identifying the deficiencies of the sixth 7 amended 8 dismissal. 9 Memorandum Decision dismissing the sixth amended complaint issued. 10 Several key factors relevant to determining whether Plaintiffs 11 should be granted leave to amend weigh against granting Plaintiff’s 12 Request. 13 to plead their complaint. 14 Where a plaintiff has already had one or more opportunities to 15 amend a complaint, a court has greater discretion to deny a 16 subsequent request for leave under Rule 15. complaint was At the time Plaintiffs filed the SAC on imprudent and had resulted in a prior Nonetheless, Plaintiffs filed their SAC before the First, Plaintiffs have been given numerous opportunities DCD Programs, 833 F.2d at 186 n.6. Id. 17 Second, Defendants would be prejudiced by granting Plaintiffs 18 another opportunity to amend weighs against granting the Request. 19 Id. at 186. Plaintiffs filed the Request after Defendants filed an 20 answer to the SAC. Granting the Request would impose on Defendants 21 the additional expense of filing yet another answer. 22 Plaintiffs leave to file an eighth amended complaint would further 23 delay resolution of this case. Granting 24 Third, granting the Request would countenance Plaintiffs’ 25 imprudent strategy of filing untimely amended complaints ignoring 26 the court’s instructions and encourage the waste of resources 27 caused by such a strategy. 28 the day after oral argument on the motion to dismiss the sixth Plaintiffs’ decision to file the SAC 5 1 amended complaint is inexplicable given express instructions to 2 Plaintiffs and supports an inference of bad faith. 3 Finally, given the content of Plaintiff’s proposed eighth 4 amended complaint, granting the Request would be futile, as the 5 eighth amended complaint does not correct the deficiencies that 6 required dismissal of the sixth amended complaint. 7 Plaintiffs have not demonstrated that leave to file an eighth 8 amended complaint is necessary or appropriate. Because Plaintiffs’ 9 did not obtain leave to file an eighth amended complaint, the 10 complaint filed on October 6, 2010 is a nullity. See Fed. R. Civ. 11 P. 15. The pleadings in 12 this case are settled. If Plaintiffs again violate the rules, they 13 will be held accountable under Rule 11. 14 IT IS SO ORDERED. 15 Dated: hkh80h Defendants motion to strike is GRANTED. December 2, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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