Free Motion to Amend/Correct - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10
The Law Offices of Robert M. Cook, PLLC 1440 E. Missouri Avenue, Suite 185 Phoenix, Arizona 853014

Robert M. Cook (SBN 002628) Kip M. Micuda (SBN 011921) THE LAW OFFICES OF ROBERT M. COOK, PLLC 1440 East Missouri, Suite 185 Phoenix, Arizona 85014 Telephone: (602) 285-0288 Facsimile: (602) 285-0388 E-mail: [email protected] Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Robert A. Cuevas, Plaintiff, vs. City of San Luis, Arizona; Police Department of City of San Luis, Arizona; and John Miranda, Former Chief of Police, City of San Luis, Arizona and Alex Ruiz, Former City Administrator for the City of San Luis, Arizona, both in their official and individual capacities, Defendants. Motion for Leave to file Second Amended Complaint (Section 1983 Civil Rights) (Jury Demand) Case No: CIV04-0476-PHX-PGR

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

COMES NOW Robert A. Cuevas ("Plaintiff"), by and through his undersigned counsel, respectfully requests, under Rule 15(a) FRCP, for leave to file a Second Amended Complaint. Plaintiff's interests here compel undersigned counsel to assert that the First Amended Complaint requires clarification and correction, and that it should accurately reflect the evidence that will be presented to this Court. Consequently, Plaintiffs assert the ... ... ... ... ...

Case 2:04-cv-00476-PGR

Document 56

Filed 05/22/2008

Page 1 of 4

1 2 3 4 5

instant motion. This motion is supported by the Memorandum of Points and Authorities and Second Amended Complaint, both attached hereto and incorporated herein. RESPECTFULLY SUBMITTED this 22nd day of May, 2008. THE LAW OFFICES OF ROBERT M. COOK, PLLC By /s/ Robert M. Cook Robert M. Cook Kip M. Micuda Attorneys for Plaintiff

6 7 8 9 10
The Law Offices of Robert M. Cook, PLLC 1440 E. Missouri Avenue, Suite 185 Phoenix, Arizona 853014

I certify that on this 22nd day of May, 2008, I filed the foregoing document via CM/ECF, to: The United States District Court District of Arizona COPY OF THE FOREGOING sent via mailed this 22nd day of May, 2008 to: Daniel R. Malinski, Esq. BURCH & CRACCHIOLO PA PO Box 16882 Phoenix, Arizona 85011-6882 Attorney for City of San Luis Police Department, Alex Ruiz, John Miranda and City of San Luis By: /s/ Vicki L. Morgan

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

Case 2:04-cv-00476-PGR

Document 56

Filed 05/22/2008

Page 2 of 4

1 2 3

MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff respectfully moves this Court for leave to file a second­and last­amended

4

complaint. Plaintiff does so to clarify and correct his pleading, as well as to accurately
5

reflect what the evidence will be in this matter. Plaintiff urges this motion in good faith and
6

not to delay these proceedings or cause Defendants any prejudice. Plaintiff and undersigned
7

counsel assert that the attached Second Amended Complaint will best utilize this Court's
8

resources and serve justice. Indeed, the amended pleading truthfully and accurately relates
9

what Plaintiffs believe to be true, based on facts, and limits the scope of this action to only
10
The Law Offices of Robert M. Cook, PLLC 1440 E. Missouri Avenue, Suite 185 Phoenix, Arizona 853014

those claims supported by such facts.
11

Generally, Rule 15 advises courts that "leave shall be freely given when justice so
12

requires." This policy is "to be applied with extreme liberality." Owens v. Kaiser Found.
13 14 15

Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Bank of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). When deciding whether to permit amendments to a complaint­after the first amendment submitted as of right under Federal

16

Rule of Civil Procedure 15(a) ­ a court should consider "undue delay, bad faith or dilatory
17

motive on the part of the movant, repeated failure to cure deficiencies by amendments
18

previously allowed, undue prejudice to the opposing party by virtue of allowance of the
19

amendment, [and] futility of amendment." Forman v. Davis, 371 U.S. 178, 182, 9 L. Ed.
20

2d 222, 83 S. Ct. 227 (1962). "Absent prejudice, or a strong showing of any of the
21

remaining Forman factors, there exists a presumption under Rule 15(a) in favor of granting
22 23

leave to amend." Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (emphasis in original). "Where the plaintiff offers to provide `additional evidence'

24

that would add `necessary details' to an amended complaint and such offer is made in good
25

faith, leave to amend should be granted." Broudo v. Dura Pharms., Inc., 339 F.3d 933, 941
26 27 28 3

(9th Cir. 2003).

Case 2:04-cv-00476-PGR

Document 56

Filed 05/22/2008

Page 3 of 4

1 2 3 4 5 6 7 8 9 10
The Law Offices of Robert M. Cook, PLLC 1440 E. Missouri Avenue, Suite 185 Phoenix, Arizona 853014

Not all of the Forman factors merit equal weight. As the Ninth Circuit and others have held, it is the consideration of prejudice to the opposing party that carries the greatest weight. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987). Prejudice is the "touchstone of the inquiry under rule 15(a)." Lone Star Ladies Inv. Club v. Schlotzsky's Inc., 238 F.2d 363 368 (5th Cir. 2001); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973) (stating that "the crucial factor is the resulting prejudice to the opposing party"). Here, there is little to no prejudice to Defendants by allowing Plaintiff's leave to amend. Discovery has not started. Similarly, there is no undue delay here. Accordingly, Plaintiff urges his motion for leave to amend in good faith. Simply, the effort here is to present a truthful and accurate pleading that will save the parties and this Court time, and help this Court render a thoughtful and correct decision. It is manifest that the Court's resources and justice will be best served by clarifying and correcting the First Amended Complaint, as well as ensuring that it accurately reflect the evidence that will be presented to this Court. This is not the case where amendment is futile. Rather, leave to amend is sought to facilitate this matter while ensuring that Plaintiff's interests and causes receive a just determination. The instant facts and circumstances, then, assert Plaintiff, presume leave to amend. Accordingly, Plaintiff urges this Court to find and conclude that leave to amend the First Amended Complaint is warranted here. DATED this 22nd day of May, 2008.

11 12 13 14 15 16 17 18 19 20 21 22 23 24

THE LAW OFFICE OF ROBERT M. COOK, PLLC By: /s/ Robert M. Cook Robert M. Cook Kip M. Micuda Attorneys for Plaintiffs

25 26 27 28 4

Case 2:04-cv-00476-PGR

Document 56

Filed 05/22/2008

Page 4 of 4