FINDINGS AND RECOMMENDATION

YOULEE YIM YOU, Magistrate Judge.

Plaintiffs have filed a Motion for Leave to File Third Amended Complaint (ECF #77). The motion should be DENIED.

FINDINGS

I. Standard of Review

Rule 15(a)(2) provides that "[t]he court should freely give leave when justice so requires." However, leave to amend "is not to be granted automatically." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (emphasis added). The court "may exercise its discretion to deny leave to amend due to `undue delay, bad faith or dilatory motive on [the] part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . ., [and] futility of amendment.'" Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)) (alterations in original). In its exercise of discretion, the court may also properly consider whether allowing additional claims at a late date will require further discovery, resulting in prejudice to the opposing party and a delay of the proceedings. Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002).

II. Analysis

The original complaint in this case was filed almost three years ago, on May 18, 2014. ECF #1. Plaintiffs have already been afforded two opportunities to file amended complaints. They filed an Amended Complaint on June 23, 2014 (ECF #7) and a Second Amended Complaint on May 4, 2015 (ECF #31). After extending the deadlines for completing discovery and filing dispositive motions numerous times, on November 14, 2016, the court ordered that it would "entertain no further requests for extension of the case schedule." ECF #64.

Following unexpectedly bad winter weather, on January 30, 2017, the court extended the discovery deadline to February 21, 2017, so that plaintiffs could depose Sgt. Freeman and Sgt. Thompson. ECF #75. The court made clear that "[a]ll other deadlines in this matter remain in effect." Id. On February 2, 2017, as a result of plaintiffs attempt to expand the scope of the court's January 30, 2017 order, the court "clarifie[d] that, on January 30, 2017, the discovery deadline was extended solely to complete the depositions of Sgt. Freeman and Sgt. Thompson in light of inclement weather." ECF #76.

On February 27, 2017, after the final discovery cutoff date had passed, plaintiffs filed their motion for leave to file a third amended complaint. ECF #77. The proposed amendments relate to a new, female inmate plaintiff for an incident that occurred in August 2016, more than one year after the filing of the Second Amended Complaint. Id. Plaintiffs also seek to amend their complaint to add new allegations pertaining to the Code of Federal Regulations and to distinguish between sentenced and unsentenced defendants. Id.

These amendments are substantive in numerous ways. Most significantly, they pertain to a new class of plaintiffs—female versus male inmates during a different time period than originally alleged. Although these amendments will clearly require additional discovery, plaintiffs filed their motion well after the discovery cut off date had passed. While plaintiffs had ample opportunity—several months in fact—to file this motion, they failed to do so. As such, it cannot be said that the amendment is being requested without undue delay, and the motion therefore should be denied.

Additionally, defendants have adequately demonstrated undue prejudice. As mentioned above, this amendment pertains to an entirely new group of class members. Discovery would undoubtedly have to extended again, for the eighth time.1 Depositions that have already been conducted will likely have to be reopened. Defendants' motion for summary judgment, which has already been filed, will have to be redrafted to address these new allegations and refiled. All of this comes at considerable cost, and prejudice, to defendants.

RECOMMENDATION

For the reasons stated, plaintiffs' motion for leave to file a third amended complaint (ECF #77) should be denied.

SCHEDULING ORDER

This Findings and Recommendation will be referred to a district judge. Objections, if any, are due Thursday, April 20, 2017. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.

If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.

NOTICE

This Findings and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.