Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 MARVIN DONIUS, et al., Case No.: 25-cv-1052-BJC-JLB 14 Plaintiffs, ORDER GRANTING MOTION FOR 15 v. LEAVE TO AMEND/ CORRECT 16 NICOLE PEACOCK, et al., COMPLAINT Defendants. 17 [ECF No. 88] 18 19 Pending before the Court is Plaintiffs’ motion for leave to amend/correct the 20 complaint. ECF No. 88. For the reasons set forth below, the Court GRANTS the motion 21 and DENIES all other pending motions as moot. 22 I. BACKGROUND 23 On April 25, 2025, Plaintiffs initiated this action by filing the Complaint in this case, 24 which asserted various causes of action arising out of the alleged removal and destruction 25 of Plaintiffs’ property pursuant to an Order Regarding Civil Contempt issued by the Rincon 26 Civil Tribal Court. ECF No. 1. On May 27, 2025, Plaintiffs filed a First Amended 27 Complaint, adding Dudek, a contractor alleged to have participated in the removal of 28 Plaintiffs’ property, as a defendant. ECF No. 24. 1 On August 12, 2025, Plaintiffs filed a second action in this Court, Donius v. Peacock, 2 Case No. 25-cv-0273. On September 8, 2025, the parties jointly moved to consolidate the 3 two actions. ECF No. 50. On October 6, 2025, the Court granted the joint motion, 4 consolidated the cases, designated this action as the lead case, and closed Case No. 25-cv- 5 0273. ECF No. 53. 6 Following a status conference held on November 6, 2025, the Court entered an 7 amended scheduling order establishing January 23, 2026, as the deadline for “[a]ny motion 8 to join other parties, to amend the pleadings, or to file additional pleadings.” ECF No. 65. 9 Despite that deadline, on February 2, 2026, Plaintiffs filed a First Amended Complaint, 10 post consolidation, without first obtaining leave of Court or the parties’ stipulation. ECF 11 No. 84. 12 On February 10, 2026, Defendants Steve Stallings, Joseph Linton, Laurie E. 13 Gonzalez, John Constantino, Alfonso Kolb, Nicole Peacock, Dudek, LAP Demolition 14 Services, and LAP Demolition Inc. (collectively, “Tribal Officials and Vendors”) filed a 15 motion to strike Plaintiff's First Amended Complaint. ECF No. 87. Later that same day, 16 Plaintiffs filed a motion for leave to amend/correct the complaint. ECF No. 88. On 17 February 11, 2026, Defendant Ramirez likewise filed a motion to strike the First Amended 18 Complaint. ECF No. 89. On February 20, 2026, Defendant Ramirez filed an opposition 19 to Plaintiffs’ motion for leave to amend. ECF No. 97. 20 II. LEGAL STANDARD 21 Under Federal Rule of Civil Procedure 16(b), the court must issue a scheduling order 22 that limits the time to amend the pleadings. Fed. R. Civ. P. 16(b)(4). If a party seeks to 23 amend after the scheduling order's deadline, then the court applies a two-step analysis. 24 First, the party seeking leave to amend must satisfy the “good cause” standard of Federal 25 Rule of Civil Procedure 16(b)(4), which provides that “[a] schedule may be modified only 26 for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” 27 standard is a non-rigorous standard that has been construed broadly.” Tan v. Quick Box, 28 LLC, 2023 WL 3997968, *2 (S.D. Cal. June 14, 2023) (citing Ahanchian v. Xenon Pictures, 1 Inc., 624 F.3d 1253, 1259 (9th Cir. 2010)). In determining whether good cause exists, the 2 court “primarily considers the diligence of the party seeking the amendment.” In re 3 Western States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 4 2013) (citation omitted). As the Ninth Circuit explained, “the focus of 5 the Rule 16(b) inquiry is upon the moving party's reasons for seeking modification ... if 6 that party was not diligent, the inquiry should end.” Id. (internal quotation marks and 7 citation omitted). 8 If the Court finds that there is good cause to modify the schedule, the moving party 9 must next demonstrate the amendment is proper under Federal Rule of Civil Procedure 10 15(a). Under Rule 15(a), “a party may amend its pleading only with the opposing party’s 11 written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). In considering whether to 12 grant leave to amend, “[t]he court should freely give leave when justice so requires.” Id. 13 The Ninth Circuit has instructed that this policy is to be applied with “extreme liberality” 14 in light of the strong federal preference for resolving cases on their merits. DCD Programs, 15 Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). In exercising its discretion, the Court 16 considers several factors, including: “(1) bad faith; (2) undue delay; (3) prejudice to the 17 opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously 18 amended the complaint.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). “Not all 19 of the factors merit equal weight . . . prejudice to the opposing party carries the greatest 20 weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 21 III. DISCUSSION 22 Plaintiffs seek leave to file an amended complaint pursuant to Federal Rule of Civil 23 Procedure 15(a)(2). The proposed amendment: (1) adds S & R Towing, Inc. and Charles 24 Russell, Jr., d/b/a S&R Towing as defendants; (2) revises the caption to reflect the 25 additional defendants and identify the pleading as the First Amended Complaint; (3) adds 26 Robert Ryan as newly associated counsel; (4) expands the allegations in paragraph 105 27 regarding why the non-Tribal contractor defendants are not entitled to derivative sovereign 28 immunity; (5) makes a minor revision to paragraph 110; (6) adds language to paragraph 9 1 of the prayer for relief; and (7) adds a jury demand. ECF No. 88 at 2-3. 2 Defendants have moved to both strike and dismiss the proposed amended complaint. 3 ECF Nos. 87, 89, 96, 97. In their respective motions, Defendants argue that Plaintiff was 4 not entitled to amend the complaint as a matter of course under Federal Rule of Civil 5 Procedure 15(a)(1). ECF No. 87-1 at 4; ECF No. 89-1 at 3. Defendants further contend 6 that Plaintiff failed to obtain either the opposing parties’ written consent or leave of court 7 before filing the amended complaint, as required by Rule 15(a)(2). ECF No. 87-1 at 5; 8 ECF No. 89-1 at 3. 9 The Tribal Officials and Vendors further argue that granting Plaintiff leave to amend 10 would prejudice them. ECF No. 87-1 at 5. Specifically, they contend that Plaintiff has 11 already been afforded multiple opportunities to amend the complaint. Id. They also assert 12 that permitting the First Amended Complaint would require the Tribal Defendants to refile 13 their currently pending motions, thereby delaying this Court's adjudication of those 14 motions. Id. at 5–6. According to the Tribal Defendants, this delay would be particularly 15 prejudicial because Plaintiff has already served numerous discovery requests during the 16 pendency of the motions, requiring Defendants to expend additional time and resources 17 responding to discovery while awaiting resolution of the pleadings. Id. at 6. In his separate 18 motion to dismiss, Defendant Ramirez also argues that allowing the First Amended 19 Complaint to stand would require Defendants to prepare and file a new motion to dismiss, 20 thereby “resulting in the needless expenditure of the parties' money and the Court's time.” 21 ECF No. 89-1 at 4. 22 On February 20, 2026, Defendant Ramirez filed an opposition to Plaintiffs’ motion 23 for leave to amend. ECF No. 97. Ramirez argues that because the deadline for amending 24 pleadings set forth in the Court’s scheduling order had expired, Plaintiffs must satisfy the 25 “good cause” standard under Federal Rule of Civil Procedure 16(b)(4) before the Court 26 may consider whether amendment is appropriate under Rule 15(a). Id. Ramirez contends 27 that Plaintiffs cannot establish good cause because they failed to act diligently in seeking 28 1 amendment. Id. Ramirez further requests an award of reasonable expenses under Rule 2 16(f)(2), arguing that Plaintiffs' failure to comply with the Court's amended scheduling 3 order unnecessarily increased litigation costs. Id. 4 The Court grants Plaintiffs’ motion for leave to amend. Because Plaintiffs seek leave 5 to amend after the deadline established in the November 6, 2025 scheduling order, 6 Plaintiffs must first satisfy Rule 16(b)(4)’s “good cause” standard. Here, the Court's 7 scheduling order set January 23, 2026, as the deadline to amend the pleadings. ECF No. 8 65. Plaintiffs filed their First Amended Complaint on February 2, 2026, only ten days after 9 that deadline. Plaintiffs seek to correct the identity of the previously named “S & R 10 Towing” defendant after counsel discovered through additional investigation that the 11 proper entity is “S & R Towing, Inc.”, with Charles Russell, Jr. as its agent for service of 12 process. Although Defendant is correct that Plaintiffs could have discovered this 13 information sooner, the record does not demonstrate a lack of diligence sufficient to deny 14 leave to amend. Moreover, the Ninth Circuit has recognized a strong policy favoring 15 resolution of cases on the merits rather than through procedural defaults. Eitel v. McCool, 16 782 F.2d 1470, 1472 (9th Cir. 1986) (“Cases should be decided upon their merits whenever 17 reasonably possible.”). In light of this policy, and because the proposed amendment 18 primarily seeks to correct the identity of an existing defendant and clarify the allegations, 19 the Court finds good cause under Rule 16(b)(4). 20 21 1 Specifically, Ramirez challenges Plaintiffs’ explanation for adding S & R Towing, Inc. 22 and Charles Russell, Jr., d/b/a S&R Towing as defendants. Plaintiffs assert that, after the 23 originally named defendant, “S & R Towing,” failed to respond to the complaint, counsel conducted additional research through the California Secretary of State and discovered that 24 the correct entity was S & R Towing, Inc., with Charles Russell, Jr. designated as its agent 25 for service of process. ECF No. 88 at 5–6. Ramirez argues that this explanation demonstrates a lack of diligence because Plaintiffs filed their original complaint 26 approximately five and one-half months before the deadline to amend pleadings. ECF No. 27 97 at 3-4. According to Ramirez, once “S & R Towing” failed to answer within the time prescribed by Rule 12(a)(1)(A)(i), Plaintiffs should have promptly verified the identity of 28 1 Next, the Court considers whether Plaintiffs have demonstrated that amendment is 2 proper under Rule 15(a). On balance, the relevant factors weigh in favor of granting leave 3 to amend. First, there is no evidence of bad faith, nor do Defendants contend that Plaintiffs 4 seek amendment for an improper purpose. Second, the proposed amendment is not futile. 5 As discussed above, Plaintiffs seek primarily to correct the identity of an existing 6 defendant. Permitting amendment will allow the Court to resolve Plaintiffs’ claims on their 7 merits rather than on a technical pleading defect. Third, Plaintiffs have not repeatedly 8 failed to cure deficiencies through prior amendments. Although Defendants correctly note 9 that Plaintiffs have amended their pleadings before, this is Plaintiffs’ first request to amend 10 following consolidation of these actions. 11 Defendants’ principal argument is that amendment will cause delay because they 12 will be required to file new motions to dismiss and revisit issues already raised in their 13 pending motions. ECF No. 87-1 at 5-6. The Court acknowledges that permitting 14 amendment may require additional briefing and may delay resolution of the pending 15 motions. However, “[d]elay alone no matter how lengthy is an insufficient ground for 16 denial of leave to amend.” United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981). 17 Rather, “[o]nly where prejudice is shown or the movant acts in bad faith are courts 18 protecting the judicial system or other litigants when they deny leave to amend a pleading.” 19 Howey v. United States, 481 F.2d 1187, 1191 (9th Cir. 1973). Here, Defendants have not 20 demonstrated that Plaintiffs seek leave to amend in bad faith or that the proposed 21 amendment would result in undue prejudice. Although amendment may require 22 Defendants to file renewed motions and incur additional litigation expenses, this is the 23 ordinary consequence of an amendment and it does not, without more, constitute prejudice 24 under Rule 15(a).2 Because Defendants have failed to make the requisite showing, and in 25 26 27 2 The Court further notes that, aside from Plaintiffs’ amendment to correct the name of co- defendant S & R Towing, Inc., the remaining amendments are minimal in nature and do 28 1 light of Rule 15(a)’s liberal policy favoring amendment, the Court concludes that leave to 2 amend is appropriate. 3 Finally, the Court declines to award expenses under Rule 16(f)(2). Although 4 Defendant Ramirez requests an award of reasonable expenses incurred as a result of 5 Plaintiffs’ untimely amendment, ECF No. 97, Defendant does not identify the expenses 6 allegedly incurred. Absent any supporting documentation or explanation, the Court cannot 7 assess the propriety or amount of the requested award. Accordingly, Defendant Ramirez's 8 request for reasonable expenses under Rule 16(f)(2) is DENIED. 9 IV. CONCLUSION 10 Accordingly, the Court GRANTS Plaintiffs’ motion for leave to amend/correct the 11 complaint. ECF No. 88. Plaintiff may file a First Amended Complaint no later than July 12 24, 2026. Defendant may file a responsive pleading no later than July 31, 2026. Because 13 there is no operative complaint upon which the following motions can be based, the Court 14 DENIES the following motions without prejudice:3 15 (1) Motion to Dismiss Plaintiffs’ FAC (ECF No. 51);

16 (2) Motion to Dismiss or Stay for Failure to Exhaust Tribal Remedies 17 (ECF No. 66);

18 (3) Motion to Joinder in Motion to Dismiss (ECF No. 67); 19 (4) Motion to Calendar Motion to Dismiss (ECF No. 68); 20 21 (5) Motion to Strike Document (ECF No. 87);

22 (6) Motion to Strike Document (ECF No. 89); 23 (7) Motion to Dismiss for Sovereign Immunity and For Failure to Join 24 Indispensable Parties (ECF No. 93); 25 26 27 3 Frick v. United States, 2022 WL 4227970, *2 (W.D. Wash. July 1, 2022) (holding that if “there is no operative complaint pending, Plaintiff's Motion is not properly before the 28 (8) Joint Motion to Continue Hearing on Tribal Defendants’ Motion to Dismiss for Sovereign Immunity and for Failure to Join Indispensable Parties (ECF 3 No. 105); 4 (9) Ex Parte Motion to Shorten Time in which to file a FRCP 72(a) motion to 5 modify or set aside a non-dispositive discovery order (ECF No. 107); 6 7 (10) Motion to Set Aside Order on Motion to Stay (ECF No. 112). 8 IT IS SO ORDERED. 9 10 Dated: July 17, 2026 11 Honorable Benjamin J. Cheeks 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28