United States District Court, D. Arizona
LAWRENCE O. ANDERSON, Magistrate Judge.
This matter is before the Court on Plaintiff's Motion for Leave to File an Amended Complaint and Plaintiff's Motion to Enhance Page Limits for First Amended Complaint. (Docs. 63, 64) Defendants have filed a "Notice of No Response to Plaintiff's Motion for Leave to File First Amended Complaint" (Doc. 66)
Despite the Court's warning in a footnote in its November 15, 2013 Order, doc. 55, that a "Notice of No Response" is not proper response to a motion, Michael J. Hrnicek, Assistant Arizona Attorney General, has filed another one. The Notice states Defendants will not respond to the motion to amend "unless ordered to do so by the Court, " because, according to Defendants, the motion does not "appear to warrant a response." (Doc. 66) Rule of Practice for the District Court of Arizona ("Local Rule" or "LRCiv") 7.2(c) requires the opposing party to file a response to a motion. See LRCiv 7.2(c) (providing that "[t]he opposing party shall, unless otherwise ordered by the Court... file a responsive memorandum.") (emphasis added). Unlike a reply, the response is not discretionary. See LRCiv 7.2(d) (providing that the moving party may file a reply "if that party so desires"). It is not the District Court's responsibility to order the opposing party to file a response. If Defendants do not oppose the relief requested by Plaintiff in a given motion, their response should so indicate. To simply conclude, however, that a motion does not "appear to warrant a response" is not a determination that Defendants are authorized to make. See LRCiv 7.2(c). If Mr. Hrnicek files a similar Notice of No Response in this or any other case assigned to this Magistrate Judge, sanctions will be imposed on him personally.
Plaintiff initiated this action by filing a Civil Rights Complaint by a Prisoner on November 26, 2012. (Doc. 1) Upon screening the Complaint pursuant to 28 U.S.C. § 1915A(a), the assigned District Judge dismissed Counts I, II, III, V and part of Count IV. (Doc. 8 at 18) The only claim for which the District Judge ordered an answer was a takings claim in Count IV of the Complaint against two defendants. ( Id. ) Plaintiff subsequently filed a Motion for Reconsideration of Court's Screening Order, doc. 9, which the District Judge denied on April 10, 2013. (Doc. 16) Plaintiff also filed a Notice of Interlocutory Appeal to the Ninth Circuit Court of Appeals, challenging the screening order. (Doc. 11) The appeal was dismissed for lack of jurisdiction on April 24, 2013. (Doc. 20-1) Defendants filed their Answer on May 20, 2013. (Doc. 19) The undersigned Magistrate Judge issued a Scheduling and Discovery Order on May 24, 2013. (Doc. 21) That Order set a firm deadline of September 23, 2013 for motions to amend pleadings. ( Id. )
II. Motion for Leave to Amend
For the third time, Plaintiff seeks leave to amend the Complaint by re-asserting the claims that were dismissed in the screening order. (Doc. 63 at 1-2) Plaintiff claims he has amended the Complaint to "conform with the standards that the court uses to say plaintiff failed to state a claim on all counts which were dismissed by the court." ( Id. at 2) Plaintiff further contends he has complied with the applicable Local Rules. ( Id. ) The Court denied Plaintiff's first two motions for leave to amend because they failed to comply with LRCiv 15.1(a). (Docs. 36, 55)
A. Legal Standards
Federal Rule of Civil Procedure 15(a), which governs the amendment of civil complaints, provides that "leave [to amend a pleading] shall be freely given when justice so requires." "In deciding whether justice requires granting leave to amend, factors to be considered include the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment." Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). A district court need not prolong litigation by permitting further amendment where such amendment would be futile. Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002). Granting or denying a motion to amend is a matter within the district court's discretion. See, e.g., Ventress v. Japan Airlines, 603 F.3d 676, 680 (9th Cir. 2010); Chappel v. Laboratory Corp. of Amer., 232 F.3d 719, 725 (9th Cir. 2000).
When a party seeks leave to amend a complaint after a pretrial scheduling order has been entered pursuant to Rule 16(b)(1), Fed.R.Civ.P., and after the designated deadline for amending pleadings has passed, the party must first make a showing of "good cause" under Rule 16(b)(4). Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 608 (9th Cir. 1992) ("A party seeking to amend a pleading after the date specified in the scheduling order must first show good cause for amendment under Rule 16, then if good cause be shown, the party must demonstrate that amendment was proper under Rule 15.") (citation and internal quotation marks omitted). When seeking leave to amend after the deadline imposed by the scheduling order, a party cannot "appeal to the liberal amendment procedures afforded by Rule 15; his tardy motion [has] to satisfy the more stringent good cause' showing required under Rule 16." AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 965, 952 (9th Cir. 2006) (emphasis in original). "Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to impose an amendment and the prejudice to the opposing party, Rule 16(b)'s good cause' standard primarily considers the diligence of the party seeking the amendment." Johnson, 975 F.2d at 609.
For purposes of Federal Rule of Civil Procedure 16(b)(4), "good cause" means the scheduling deadlines cannot be met despite the party's diligence. Id. (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. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citation and internal quotation marks omitted).
A district court may deny as untimely an amendment motion filed after the scheduling order's cut-off date where no request to modify the order has been made. See Johnson, 975 F.2d at 608-09 (citing U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir. 1985)) (concluding that district courts may deny as untimely a motion filed after the motion cut-off date established in the scheduling order where no request to modify the order has been made).
Here, because the scheduling order established a September 23, 2013 deadline for seeking leave to amend a pleading, doc. 21 at 2, Plaintiff's untimely request to amend his complaint is governed by the "good cause" standard in Rule 16(b)(4). Plaintiff acknowledges in his motion that the deadline in the scheduling order has passed. He argues, however, that his previous attempts were timely, the defendants are not prejudiced by his untimely motion, he has been diligent, and there is no ...