(PS) Graham v. U.S. Dept. of Homeland Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK E. GRAHAM, Case No. 2:19-cv-02429-TLN-JDP (PS) 12 Plaintiff, ORDER GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT 13 v. AND 14 UNITED STATES DEPARTMENT OF HOMELAND SECURITY and UNITED DENYING DEFENDANTS’ MOTION TO 15 STATES IMMIGRATION AND DISMISS AS MOOT CUSTOMS ENFORCEMENT, 16 ECF Nos. 10, 14 17 Defendants. 18 On December 4, 2019, Mark Graham (“plaintiff”) filed a complaint against the U.S. 19 Department of Homeland Security (“DHS”) and U.S. Immigration and Customs Enforcement 20 (“ICE”) (collectively, “defendants”). See ECF No. 1 at 1. The complaint is based on plaintiff’s 21 2011 Freedom of Information Act (“FOIA”) request, which sought to obtain a range of statements 22 of ICE’s policies and procedures. See id. at 6-11. On April 6, 2020, defendants moved to dismiss 23 the complaint based on the statute of limitations. ECF No. 10 at 1; ECF No. 10-1 at 2-5. 24 On May 20, 2020, plaintiff moved for leave to file an amended complaint.1 ECF No. 14 at 25 1 Plaintiff’s motion sought leave to supplement, rather than amend, his complaint. ECF No. 14 at 1-2. However, a complaint must be complete on its face, without reference to any 26 earlier complaint. E.D. Cal. L.R. 220. Therefore, it would not be appropriate for plaintiff to 27 supplement his initial complaint, insofar as the supplement would rely on references to the prior complaint. An amended complaint, in contrast, supersedes any earlier complaint, and once an 28 amended complaint has been filed, the earlier complaint serves no function in the case. See 1 1-2. Plaintiff seeks to add claims associated with a subsequent FOIA request—for substantially 2 the same materials addressed in his 2011 request—which he submitted after he had filed his 2019 3 complaint. See id. at 2. Plaintiff may properly amend his complaint to address a “transaction, 4 occurrence, or event that happened after the date” of his initial complaint. Fed. R. Civ. P. 15(d); 5 see also William Inglis & Sons Baking Co. v. ITT Cont’l Baking Co., 668 F.2d 1014, 1057 (9th 6 Cir. 1982) (“The purpose of Rule 15(d) is to promote as complete an adjudication of the dispute 7 between the parties as possible by allowing the addition of claims which arise after the initial 8 pleadings are filed.”). 9 Since plaintiff filed his motion after being served with defendant’s responsive pleading, 10 plaintiff “may amend [his] pleading only with the opposing party’s written consent or the court’s 11 leave[; t]he court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). In 12 determining whether to grant leave, courts consider five factors: “(1) bad faith; (2) undue delay; 13 (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has 14 previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). 15 Generally, courts grant motions for leave with “extreme liberality.” Eminence Capital, LLC v. 16 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 17 Defendants argue that plaintiff’s motion for leave should be denied for two reasons. First, 18 they argue that amendment would be futile because plaintiff did not exhaust his administrative 19 remedies for his more recent FOIA request. See ECF No. 17 at 3-4. Plaintiff filed his motion for 20 leave to amend on May 20, 2020, ECF No. 14, and ICE had until June 25, 2020, to issue a 21 decision, taking into account the agency’s request for clarifying information, see ECF No. 17 at 4. 22 ICE did not issue a decision by June 25, 2020, however, triggering constructive exhaustion. See 23 ECF No. 23. Defendants’ exhaustion-based futility argument therefore fails; it appears that 24 plaintiff’s administrative remedies will qualify as exhausted if he files an amended complaint. 25 See Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 60-61 (D.C. Cir. 1987), overruled on other 26 grounds by Jackson v. Modly, 949 F.3d 763, 765 (D.C. Cir. 2020); Aftergood v. C.I.A., 225 F. 27 Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997). I construe plaintiff’s motion to be a 28 request for leave to amend. Plaintiff may raise all his claims in a single, amended complaint. 1 Supp. 2d 27, 31 (D.D.C. 2002). Plaintiff’s amended complaint must state the basis for subject- 2 matter jurisdiction and should address administrative exhaustion. 3 Second, defendants argue that they would be prejudiced if amendment were permitted, 4 since plaintiff’s claim would unfairly take priority over other, backlogged FOIA requests. See 5 ECF No. 17 at 4. Defendants bear the burden of establishing prejudice. DCD Programs, Ltd. v. 6 Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Defendants’ argument relies in large part on harm 7 that could befall other FOIA requesters, as opposed to prejudice to the agency itself as an 8 “opposing party.” See Nunes, 375 F.3d at 808; but see Sierra Club v. U.S. Dep’t of Interior, No. 9 18-cv-00797-JSC, 2019 WL 1995763, at *2 (N.D. Cal. May 6, 2019) (denying leave to amend 10 complaint to add subsequent FOIA claim because “granting leave to amend would prejudice other 11 FOIA litigants given the [agency’s] backlog of FOIA requests and its processing of such requests 12 on a first-come, first-serve basis”). While there may be an administrative burden created by 13 defendants’ backlog of FOIA requests, that does not render amendment inappropriate in this case. 14 Plaintiff did not act in bad faith, he has not previously amended his complaint, his claims do not 15 appear futile, and there is no indication that undue delay would result from the amended 16 complaint. See Nunes, 375 F.3d at 808. Therefore, I will grant plaintiff’s motion for leave to file 17 an amended complaint.2 18 Since plaintiff’s amended complaint will supersede his initial complaint and render it 19 without legal effect, the pending motion to dismiss, ECF No. 10, will be denied as moot.3 See 20 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). 21 2 Plaintiff’s amended complaint must be complete in and of itself. E.D. Cal. L.R. 220. Therefore, plaintiff should not reference his initial complaint and must include all relevant claims 22 in the amended complaint. 23 3 Although I need not and do not reach the merits of the motion to dismiss, defendants’ argument does not appear persuasive. Defendants ask the court to dismiss plaintiff’s claims as 24 time-barred, considering the six-year statute of limitations. ECF No. 10-1 at 2-5, 28 U.S.C. § 2401(a). Defendants take the position that plaintiff’s remedies were exhausted—and therefore 25 that his claims accrued, starting the statute of limitations clock—twenty days after plaintiff filed his administrative appeal, when the time period allowed for ICE’s response had lapsed. By that 26 time, however, the agency had indicated that it would remand the matter for further review. See 27 ECF No. 16 at 2; ECF No. 1 at 58. As such, the agency’s decision-making process appears to have been in mid-stride, with plaintiff’s remedies accordingly unexhausted. See Mosby v. Hunt, 28 No. CIV.A.09-1917(JDB), 2010 WL 1783536, at *3 (D.D.C. May 5, 2010); see also Coleman v. 1 | ORDER 2 For the reasons stated in this opinion, the court hereby orders that: 3 1. plaintiffs motion for leave to file an amended complaint, ECF No. 14, be granted; 4 2. within 30 days from the date of this order, plaintiff shall file his first amended complaint; 5 3. defendants’ motion to dismiss, ECF No. 10, be denied as moot; and 6 4. defendants shall file a response to plaintiff's first amended complaint within the time 7 prescribed by the Federal Rules of Civil Procedure. 8 9 IT IS SO ORDERED. 10 ( — Dated: _ March 30, 2021 Q_—— 11 JEREMY D. PETERSON 10 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 . □ Drug Enf't Admin., 714 F.3d 816, 821-25 (4th Cir. 2013) (recognizing that remands are proper, 27 | but not final responses to an administrative appeal, though they may not extend the agency’s time limits indefinitely). Plaintiff appears to have exhausted his remedies on December 4, 2013, and 28 | his complaint, filed six year later to the day, does not appear to be time-barred.