Ahn v. GEO Group, Inc. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SYLVIA AHN, Case No. 1:22-cv-00586-CDB 12 Plaintiff, ORDER GRANTING MOTION FOR LEAVE TO FILE A SECOND AMENDED 13 v. COMPLAINT 14 THE GEO GROUP, INC., et al. (Doc. 35) 15 Defendants. ORDER DENYING AS MOOT 16 DEFENDANTS’ MOTIONS TO DISMISS 17 (Docs. 21, 32) 18 ORDER RESETTING SCHEDULING 19 CONFERENCE 20 21 Before this Court is Plaintiff Sylvia Ahn’s (“Plaintiff”) motion to file a second amended 22 complaint (Doc. 36), the responses (Docs. 40-41) of Defendants United States Immigration & 23 Customs Enforcement (“ICE”) and Geo Group, Inc. (“Geo Group”), and Plaintiff’s reply (Doc. 24 43). For the reasons explained herein, Plaintiff’s motion to file a second amended complaint shall 25 be granted.1 26 / / / 27 1 The parties have consented to the jurisdiction of the United States Magistrate Judge and this action has been assigned to Magistrate Judge Christopher D. Baker for all purposes. (Docs. 1 Background 2 On May 17, 2022, Plaintiff filed a complaint for compensatory and punitive damages 3 against Defendants Geo Group, ICE, and the City of McFarland. (Doc. 1). Plaintiff asserted 4 eight causes of actions against Defendants. Id. at 10-29. That same day, Plaintiff submitted an 5 administrative claim to ICE under the Federal Tort Claims Act (“FTCA”). (Docs. 35 at 3, 35-2). 6 On June 9, 2022, Geo Group filed a motion to dismiss counts seven and eight of 7 Plaintiff’s complaint. (Doc. 16). On June 23, 2022, Plaintiff filed a notice of voluntary dismissal 8 of the City of McFarland without prejudice pursuant to Federal Rule of Civil Procedure 9 41(a)(1)(A)(i). (Doc. 17). That same day, Plaintiff filed a first amended complaint against 10 Defendants Geo Group and ICE. (Doc. 18). Plaintiff asserted seven causes of actions solely 11 against Geo Group and a claim of Disability Discrimination-Violation of the Rehabilitation Act 12 against Geo Group and ICE. Id. at 11-31. 13 On July 12, 2022, Geo Group filed a motion to dismiss counts seven and eight of 14 Plaintiff’s first amended complaint. (Doc. 21). The Court denied as moot Geo Group’s June 9, 15 2022, motion to dismiss in light of the filing of a first amended complaint and amended motion to 16 dismiss on July 15, 2022. (Doc. 22). On July 26, 2022, Plaintiff filed an opposition to Geo 17 Group’s motion to dismiss and Geo Group filed a reply on August 5, 2022. (Docs. 23-24). Geo 18 Group and Plaintiff filed notices of supplemental authority on August 10 and 17, 2022. (Docs. 19 26-27). 20 On October 11, 2022, ICE denied Plaintiff’s administrative claim under the FTCA. 21 (Docs. 35 at 3, 35-3). On March 3, 2023, ICE filed a motion to dismiss Plaintiff’s claim against 22 ICE under the Rehabilitation Act. (Doc. 32). ICE argues the claim should be dismissed because 23 (1) Plaintiff has not properly served the United States; (2) the federal government is immune from 24 Rehabilitation Act claims, (3) Plaintiff has not stated a plausible claim for violation of the 25 Rehabilitation Act, and (4) she has not demonstrated standing to bring the Rehabilitation Act 26 claim individually. Id. 27 On March 17, 2023, Plaintiff filed a motion for leave to file a second amended complaint. 1 denied administratively, and (2) to add the United States of America as a new defendant. (Docs. 2 35, 35-1). 3 On March 30, 2023, ICE filed a response to Plaintiff’s motion for leave to amend. (Doc. 4 40). ICE did not “categorically object to the Court’s granting leave” but noted dismissal of ICE 5 and any related federal defendants remained appropriate due to failure of service and lack of any 6 good cause explaining the failure. Id. at 1-2. ICE also argued Plaintiff’s proposed amended 7 complaint still asserted an improper Rehabilitation Act claim against it. Id. ICE asked the Court 8 if Plaintiff’s motion for leave to amend was granted, it be provided 45 days to file a response to 9 Plaintiff’s second amended complaint. Id. at 2-3. On March 31, 2023, Geo Group filed a 10 response to Plaintiff’s motion for leave to amend adopting and supporting the response filed by 11 ICE and reasserting its positions and defense as set forth in its motion to dismiss. (Doc. 41). 12 On April 7, 2023, Plaintiff filed a reply to ICE’s and Geo Group’s responses. (Doc. 43). 13 Plaintiff argues the federal defendants, ICE and the United States, should not be dismissed. Id. at 14 3. Specifically, Plaintiff argues the claims against the federal defendants all arise under the 15 FTCA. Id. Plaintiff contends “[b]ecause these are newly ripe claims that could not have been 16 pleaded or served before, Plaintiff should be allowed to amend her complaint to add such claims 17 and parties.” Id. Next, Plaintiff avers its second amended complaint does not bring a 18 Rehabilitation Act claim against ICE. Id. at 5. Lastly, Plaintiff notes it has no objection to ICE’s 19 requested extension to file an answer to her second amended complaint. Id. at 5-6. 20 Legal Standard 21 Twenty-one days after a responsive pleading or a motion to dismiss is filed, a plaintiff 22 may amend the complaint only by leave of the court or by written consent of the adverse party. 23 Fed. R. Civ. P. 15(a). “Rule 15(a) is very liberal” and a court should freely give leave to amend 24 when “justice so requires.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 25 (9th Cir. 2006); see Chodos v. W. Publ. Co., 292 F.3d 992, 1003 (9th Cir. 2002) (“it is generally 26 our policy to permit amendment with ‘extreme liberality’”) (citing Morongo Band of Mission 27 Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990)). Granting or denying leave to amend a 1 Service, 87 F.3d 339, 343 (9th Cir. 1996). “In exercising this discretion, a court must be guided 2 by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the 3 pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir, 1981); Chudacoff 4 v. Univ. Med. Ctr., 649 F.3d 1143, 1152 (9th Cir. 2011) (“refusing Chudacoff leave to amend a 5 technical pleading error, albeit one he should have noticed earlier, would run contrary to Rule 6 15(a)’s intent.”). 7 A court ordinarily considers five factors to assess whether to grant leave to amend: “(1) 8 bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) 9 whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 10 808 (9th Cir. 2004). The factors are not weighed equally. Bonin v. Calderon, 59 F.3d 815, 845 11 (9th Cir. 1995); see Atkins v. Astrue, 2011 WL 1335607, at *3 (N.D. Cal. April 7, 2011) (the five 12 factors “need not all be considered in each case”). Undue delay, “by itself…is insufficient to 13 justify denying a motion to amend.” Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999). On the 14 other hand, futility of amendment and prejudice to the opposing party can, by themselves, justify 15 the denial of a motion for leave to amend. Bonin, 59 F.3d at 845; see Eminence Capital, LLC v. 16 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (the consideration of prejudice to the opposing 17 party carries the greatest weight). 18 In conducting this five-factor analysis, the court generally grants all inferences in favor of 19 permitting amendment. Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999). 20 Moreover, the court must be mindful that, for each of these factors, the party opposing 21 amendment has the burden of showing that amendment is not warranted. DCD Programs, Ltd. v. 22 Leighton, 833 F.2d 183, 187 (9th Cir. 1987). 23 Discussion 24 The Court addresses the relevant Nunes factors below: 25 1. Bad faith 26 A motion to amend is made in bad faith where there is “evidence in the record which 27 would indicate a wrongful motive” on the part of the litigant requesting leave to amend. DCD 1 651 (W.D. Wash. 2015) (“In the context of a motion for leave to amend, ‘bad faith’ means acting 2 with intent to deceive, harass, mislead, delay, or disrupt.”) (citing Leon v. IDX Sys. Corp., 464 3 F.3d 951, 961 (9th Cir. 2006)). 4 In the case at bar, there is little “evidence in the record which would indicate a wrongful 5 motive” on Plaintiff’s behalf in requesting leave to amend. DCD Programs, 833 F.2d at 187. 6 Plaintiff justifies her request for leave to amend by representing to the Court that all of her new 7 claims could not have been successfully raised in her first amended complaint as, at that time, 8 they had not been exhausted. (Doc. 43 at 4) (citing Valadez-Lopez v. Chertoff, 656 F.3d 851, 856 9 (9th Cir. 2011)). Accordingly, this factor weighs in favor of amendment. 10 2. Undue delay 11 By itself, undue delay is insufficient to prevent the Court from granting leave to amend 12 pleadings. Howey v. United States, 481 F.2d 1187, 1191 (9th Cir. 1973); DCD Programs, Ltd., 13 833 F.2d at 186. In combination with other factors, delay may be sufficient to deny amendment. 14 Webb, 655 F.2d at 979-80. To determine undue delay, a court shall consider if “the moving party 15 knew or should have known the facts and theories raised by the amendment in the original 16 pleading.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990) (citations omitted). 17 The mere fact that a party fails to offer a reason for not moving to amend earlier does not in itself 18 constitute an adequate basis for denying leave to amend. Howey, 481 F.2d at 1190-91. Whether 19 there has been “undue delay” should be considered in the context of (1) the length of the delay 20 measured from the time the moving party obtained relevant facts; (2) whether discovery has 21 closed; and (3) proximity to the trial date. Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798-99 (9th 22 Cir. 1991). 23 The Court finds no undue delay that would support denying leave to amend. Plaintiff 24 claims a second amended complaint is necessary as her FTCA claims had not yet been exhausted 25 when she filed the first amended complaint. (Doc. 35). On October 11, 2022, Plaintiff exhausted 26 her administrative claims under the FTCA. Id. at 3. Then, Plaintiff waited over five months to 27 amend her complaint. Plaintiff has failed to address why she delayed for months to present her 1 scheduling conference has not been held (Docs. 8, 25, 30, 34), discovery deadlines and a trial date 2 have not been set, and Defendants demonstrate no irreparable prejudice they might suffer were 3 leave to amend granted, the Court finds Plaintiff’s delay was not improper. Thus, this factor 4 weighs in favor of amendment. Cf. Komie v. Buehler Corp., 449 F.2d 644, 648 (9th Cir. 1971) 5 (affirming denial of leave to amend where tardiness of the motion prejudiced the opposing party). 6 3. Futility of amendment 7 A court may deny leave to amend if the proposed amendment is futile or would be subject 8 to dismissal. Carrico v. City & Cnty. of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011). An 9 amendment is futile if the complaint clearly could not be saved by amendment. United States v. 10 Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). However, denial of leave to amend on 11 futility grounds is “rare.” Zurich Am. Ins. Co. of Illinois v. VForce Inc., No. 2:18-cv-02066-TLN- 12 CKD, 2020 WL 2732046, at *3 (E.D. Cal. May 26, 2020) (citing Netbula, LLC v. Distinct Corp., 13 212 F.R.D. 534, 539 (N.D. Cal. 2003)). “Ordinarily, ‘courts will defer consideration of 14 challenges to the merits of a proposed amended pleading until after leave to amend is granted and 15 the amended pleading is filed.”’ Id. 16 Here, ICE argues Plaintiff’s second amended complaint attempts to assert a Rehabilitation 17 Act claim against it. See (Doc. 40 at 2) (“Although the heading to plaintiff’s Rehabilitation Act 18 claim says it is against GEO Group, she still asserts that ‘ICE discriminated against Mr. Ahn 19 because of his disability’ and refers to ‘ICE’ or “Defendants” in allegations pertaining to Count 20 Two.”). In contrast, Plaintiff purports she has raised a Rehabilitation Act claim only against GEO 21 Group. (Doc. 43 at 5). 22 The Court has reviewed Plaintiff’s proposed second amended complaint and understands 23 ICE’s confusion as to Plaintiff’s Rehabilitation Act claim. Plaintiff alleges within her proposed 24 second amended complaint that ICE violated the Rehabilitation Act. (Doc. 35-1 at ¶¶ 113-14). In 25 fact, a side-by-side comparison of Plaintiff’s first amended complaint (that raised a Rehabilitation 26 Act claim against ICE) and the proposed second amended complaint shows that Plaintiff 27 primarily changed the heading and not the substance of her second count. (Docs. 18 at ¶¶ 79-101, 1 complaint that unambiguously removes ICE from Plaintiff’s Rehabilitation Act claim. 2 Defendants present no other arguments to deny Plaintiff’s motion for leave to amend on the basis 3 of futility. Therefore, this factor weighs in favor of amendment. 4 4. Prejudice to the opposing party 5 The most critical factor in determining whether to grant leave to amend is prejudice to the 6 opposing party. Eminence Capital, 316 F.3d at 1052. The burden of showing prejudice is on the 7 party opposing an amendment to the complaint. DCD Programs, Ltd., 833 F.2d at 187. There is 8 a presumption in favor of granting leave to amend where prejudice is not shown under Rule 15(a). 9 Eminence Capital, 316 F.3d at 1052. 10 ICE’s argument that granting leave to amend will cause prejudice is predicated largely on 11 its claim it should be dismissed due to Plaintiff’s failure to effectuate service. (Doc. 40 at 2). 12 Although Plaintiff does not explain the reasons for failing to effect service, she suggests she 13 purposefully delayed service so that she could complete administrative exhaustion of certain 14 claims first. (Doc. 43 at p. 3). Delaying service based on the prospect of amending a complaint 15 ordinarily does not constitute good cause to extend the time for service under Rule 4(m). See Wei 16 v. State of Hawaii, 763 F.2d 370, 371-72 (9th Cir. 1985). However, the Court has discretion to 17 permit an extension of time even absent a party’s showing of “good cause” for the extension. 18 Specifically, the 1993 Advisory Committee Notes state that Rule 4(m) “authorizes the court to 19 relieve a plaintiff of the consequences [of a dismissal] even if there is no good cause shown.” 20 Pursuant to Federal Rule of Civil Procedure 4(m), any dismissal for failure to timely effect 21 service would be limited to dismissal without prejudice. Fed. R. Civ. P. 4(m). Thus, were the 22 Court to grant ICE dismissal as it has requested, Plaintiff in all likelihood would re-add ICE to a 23 new lawsuit that, for the sake of economy and prudence, likely would be consolidated with the 24 prior (current), pending action. Valdez-Lopez, 656 F.3d at 856. Thus, dismissal on such grounds 25 at this junction would not be an efficient use of resources for either the parties or this Court. 26 Accordingly, this factor weighs in favor of granting leave to amend. 27 / / / 1 5. Prior amendments 2 The Court’s discretion to deny leave to amend is “particularly broad” where a party has 3 previously amended the pleading. Allen v. Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). 4 Here, the amendment sought will be the second amendment to the pleadings. Thus, this factor 5 does not weigh against granting leave to amend. Storz Mgmt. Co. v. Carey, No. 2:18-CV-00068- 6 TLN-DB, 2021 WL 848768, at *4 (E.D. Cal. Mar. 5, 2021) (concluding single prior amendment 7 as a matter of course did not outweigh the other Rule 15 factors that weighed in favor of granting 8 leave to amend). 9 Conclusion and Order 10 Based on the foregoing, the Nunez factors set forth by the Ninth Circuit weigh in favor of 11 allowing Plaintiff to file a second amended complaint. Therefore, the Court exercises its 12 discretion to grant Plaintiff’s motion for leave to file a second amended complaint. Swanson, 87 13 F.3d at 343. Accordingly, IT IS HEREBY ORDERED: 14 1. Plaintiff’s motion for leave to file a second amended complaint (Doc. 35) is GRANTED; 15 2. Within five days of entry of this Order, Plaintiff shall file a second amended complaint 16 electronically as a standalone docket entry in this case. Plaintiff’s second amended 17 complaint shall correct the deficiency identified in count two and addressed in the Court’s 18 opinion above (supra p. 6); 19 3. Upon its filing, the second amended complaint shall become the operative complaint in 20 this action; 21 4. Plaintiff shall have thirty days from the entry of this order to effectuate service upon 22 Defendants United States of America and United States Immigration & Customs 23 Enforcement; 24 5. Defendants shall have 45 days to file their responses to the second amended complaint 25 following service thereof; 26 6. The scheduling conference set for June 26, 2023, at 9:30 a.m. before the undersigned, shall 27 be continued to July 24, 2023, at 9:00 a.m.; and 1 7. Defendants’ motions to dismiss (Docs. 21, 32) are DENIED AS MOOT. 2 | ITIS SO ORDERED. | Dated: _ April 17, 2023 | Word bo 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28