JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is Plaintiff's Motion to Amend the Scheduling Order and File Amended Complaint (Doc. 44). The Court now rules on the Motion.
Plaintiff, pro se, filed a Complaint on July 17, 2012. (Doc. 1). Plaintiff filed an Amended Complaint on July 19, 2012 (Doc. 3). After Defendants answered the Amended Complaint, the Court granted Plaintiff leave to file a "Third Amended Complaint, " which she filed on September 28, 2012 (Doc. 28).
On September 24, 2012, the Court held a Rule 16 Scheduling Conference and entered a Rule 16 Scheduling Order. The Scheduling Order set the deadline for motions to amend the complaint as November 12, 2012. (Doc. 27 at 2). On October 26, 2012, Defendants answered the "Third Amended Complaint" and filed a Counterclaim (Doc. 33).
On March 11, 2013, counsel appeared on behalf of Plaintiff in this case. (Doc. 38). On March 18, 2013, Plaintiff filed a motion for leave to file a Fourth Amended Complaint (Doc. 40). The Court denied Plaintiff's Motion for Leave to File a Fourth Amended Complaint without prejudice because Plaintiff did not discuss the proper standard for seeking leave to amend after the Court's Rule 16 Order setting deadlines for amendments expired. (Doc. 42 at 2).
Thereafter, on April 17, 2013, Plaintiff filed a Motion to Amend Scheduling Order and File Amended Complaint. In her Motion, Plaintiff argues that there is good cause to amend the Court's Rule 16 Scheduling Order to allow Plaintiff to file an Amended Complaint pursuant to Federal Rule of Civil Procedure 16(b)(4). Plaintiff further argues that she should be given leave to amend her complaint pursuant to Federal Rule of Civil Procedure 15.
II. LEGAL STANDARD
Rule 16 states that a Scheduling Order "may be modified only for good cause and with the judge's consent." Fed. R. Civ. Proc. 16(b)(4). For purposes of the rule, "good cause" means the scheduling deadlines cannot be met despite the party's diligence. Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (citing 6A Wright, Miller & Kane, Federal Practice and Procedure § 1522.1 at 231 (2d ed.1990)). "The pretrial schedule may be modified if it cannot reasonably be met despite the diligence of the party seeking the extension. If the party seeking the modification was not diligent, the inquiry should end and the motion to modify should not be granted." Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citation and internal quotation marks omitted).
To demonstrate diligence under Rule 16's "good cause" standard, the movant may be required to show the following: (1) that he was diligent in assisting the court in creating a workable Rule 16 order; (2) that his noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding his diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that he was diligent in seeking amendment of the Rule 16 order, once it became apparent that he could not comply with the order. Morgal v. Maricopa County Bd. of Supervisors, 07-CV-0670-PHX-RCB, 2012 WL 2029719 (D. Ariz. June 6, 2012) (quoting Grant v. United States, 11-CV-00360 LKK, 2011 WL 5554878, at *4 (E.D. Cal. Nov. 15, 2011), adopted, 11-CV-0360-LKK, 2012 WL 218959, at *1 (E.D. Cal. Jan. 23, 2012) (other citation omitted)).
If a party is able to establish good cause pursuant to Federal Rule of Civil Procedure 16(b)(4), the burden shifts to the party opposing the amendment to show that an amendment should not be allowed pursuant to Federal Rule of Civil Procedure 15 because of: (1) undue delay; (2) bad faith or dilatory motives on the part of the movant; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the opposing party; or (5) futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); see Richardson v. United States, 841 F.2d 993, 999 (9th Cir. 1988) (stating that leave to amend should be freely given unless the opposing party makes "an affirmative showing of either prejudice or bad faith").
Plaintiff seeks leave to amend her Complaint to add a claim pursuant to the Family Medical Leave Act ("FMLA"). Plaintiff argues that the Court should allow this amendment because Plaintiff has shown diligence at all stages of this litigation and, once Plaintiff retained counsel, she immediately moved for leave to amend to add the FMLA claim and clarify the retaliation claim.
In response, Defendants argue that Plaintiff cannot meet the good cause standard due to Plaintiff's own failure to investigate all possible causes of action before filing her Complaint. Defendants assert that Plaintiff's failure, while pro se, to assert all ...