Filed: Aug. 22, 2016
Latest Update: Aug. 22, 2016
Summary: ORDER GRANTING PLAINTIFF LEAVE TO FILE SECOND AMENDED COMPLAINT (ECF No. 58) STANLEY A. BOONE , Magistrate Judge . Plaintiff Vance Utley ("Plaintiff") is a state prisoner who is represented by counsel and proceeding in this civil rights action pursuant to 42 U.S.C. 1983. This case is proceeding on the first amended complaint, which Plaintiff filed on May 18, 2016, against defendants C.O. Acevedo, C.O. Wimer, and C.O. Lopez for failure to protect. (ECF No. 32.) On August 17, 2016, the par
Summary: ORDER GRANTING PLAINTIFF LEAVE TO FILE SECOND AMENDED COMPLAINT (ECF No. 58) STANLEY A. BOONE , Magistrate Judge . Plaintiff Vance Utley ("Plaintiff") is a state prisoner who is represented by counsel and proceeding in this civil rights action pursuant to 42 U.S.C. 1983. This case is proceeding on the first amended complaint, which Plaintiff filed on May 18, 2016, against defendants C.O. Acevedo, C.O. Wimer, and C.O. Lopez for failure to protect. (ECF No. 32.) On August 17, 2016, the part..
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ORDER GRANTING PLAINTIFF LEAVE TO FILE SECOND AMENDED COMPLAINT (ECF No. 58)
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Vance Utley ("Plaintiff") is a state prisoner who is represented by counsel and proceeding in this civil rights action pursuant to 42 U.S.C. § 1983. This case is proceeding on the first amended complaint, which Plaintiff filed on May 18, 2016, against defendants C.O. Acevedo, C.O. Wimer, and C.O. Lopez for failure to protect. (ECF No. 32.)
On August 17, 2016, the parties filed a stipulation to file an amendment to the first amended complaint. (ECF No. 58.) The parties stipulated to correcting the first amended complaint by dismissing Lopez from the action and substituting Delarosa as a defendant in place of Doe 1. (ECF No. 58.) The parties seek to file an amendment to the first amended complaint in order to substitute Delarosa as a defendant.
Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, a party may amend only by leave of the court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Rule 15(a) is very liberal and leave to amend "shall be freely given when justice so requires." Amerisource Bergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). Therefore, Plaintiff is granted leave to file a second amended complaint.1 The parties stipulated that Plaintiff will take the deposition of CO Delarosa within 45 days of Delarosa's answer to the first amended complaint. However, the parties are reminded that the non-expert discovery period closed on June 30, 2016. Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The parties may make informal agreements among themselves for conducting discovery, but any informal agreements shall not affect any of the upcoming dates in this action, including the January 3, 2017 pre-trial conference and February 14, 2017 jury trial.2
Accordingly, IT IS HERBY ORDERED that Plaintiff shall file a second amended complaint within five (5) days of the date of entry of this order.
IT IS SO ORDERED.
