United States District Court, D. Arizona
HONORABLE JOHN J. TUCHI UNITED STATES DISTRICT JUDGE.
issue is Plaintiffs Keith Ader and Jeffrey Cochran's
Motion to Modify Scheduling Order and for Leave to File a
Fourth Amended Complaint (Doc. 63, Mot.), to which Defendants
SMI Imaging, Howard John Simon, and SimonMed Imaging Inc.
filed a Response (Doc. 69, Resp.), and Plaintiffs filed a
Reply (Doc. 70, Reply). The Court resolves Plaintiffs'
Motion without oral argument. See LRCiv 7.2(f).
filed the original Complaint on June 29, 2017. (Doc. 1.)
There have been three amendments to the Complaint since the
initial filing. Plaintiffs filed the First Amended Complaint
on July 13, 2017, adding a claim for unlawful retaliation in
violation of the Fair Labor Standards Act (FLSA). (Doc. 9.)
Defendants filed an Answer to the First Amended Complaint on
September 15, 2017. (Doc. 16.) Additionally, Defendants filed
a motion to dismiss on the same date, but the motion was
filed before both parties had conferred. (Doc. 17.) After
conferring, the parties agreed that Plaintiffs would file a
Second Amended Complaint to address concerns raised in
Defendants' motion and that the motion would be
withdrawn. (Doc. 22.) Pursuant to stipulation and order,
Defendant withdrew its motion to dismiss and Plaintiffs filed
their Second Amended Complaint on October 2, 2017. (Docs. 19,
22, & 25.)
Court held a case management conference on October 31, 2017,
and issued the Scheduling Order on the same day. (Doc. 32.)
On or about February 2, 2018, Defendants terminated Plaintiff
Cochran's employment. (Doc. 49.) The parties then
stipulated and jointly moved the Court to allow the filing of
the Third Amended Complaint to add a claim for unlawful
retaliation committed against Cochran and to amend the Rule
16 Scheduling Order. (Doc. 49.) On April 13, 2018, the Court
granted the parties' joint motion for leave to file the
Third Amended Complaint and to amend the Scheduling Order.
now move to amend the Scheduling Order under Fed.R.Civ.P.
16(b)(4) and request leave to file a Fourth Amended Complaint
adding a claim for violations of the California Labor Code
under Fed.R.Civ.P. 15(a)(2). (Mot. at 2) Plaintiffs request
leave to add these claims for failure to pay overtime in
amounts required by Cal. Lab. Code § 510, which
calculates overtime hours differently than the FLSA and
requires (in certain circumstances) that employees be
compensated for overtime hours worked in amounts above those
required by the FLSA.
may amend a pleading once as a matter of course within 21
days after serving it, or within 21 days of service of, among
others, a Rule 12(b)(6) motion. Fed.R.Civ.P. 15(a). In all
other circumstances, absent the opposing party's written
consent, a party must seek leave to amend from the court.
Fed.R.Civ.P. 15(a)(2). Where a court has entered a scheduling
order under Rule 16 and set a deadline for amending the
pleadings, the Court “should address the issue under
[Rule] 16.” Coleman v. Quaker Oats Co., 232
F.3d 1271, 1294 (9th Cir. 2000). Under Rule 16(b)(4), a party
must show “good cause for not having amended their
complaint before the time specified in the scheduling order
expired.” Id. “This standard
‘primarily considers the diligence of the party seeking
the amendment.'” Id. (citing Johnson
v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th
party has shown good cause under Rule 16, it must demonstrate
that amendment is also proper under Rule 15.
Johnson, 975 F.2d at 608. Although the decision to
grant or deny a motion to amend is within the trial
court's discretion, “Rule 15(a) declares that leave
to amend shall be freely given when justice so
requires.” Foman v. Davis, 371 U.S. 178, 182
(1962) (citation and internal quotation marks omitted).
“In exercising its discretion with regard to the
amendment of pleadings, a court must be guided by the
underlying purpose of Rule 15-to facilitate a decision on the
merits rather than on the pleadings or technicalities.”
Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir.
1987) (citation and internal quotation marks omitted).
the policy in favor of allowing amendments is subject to
limitations. Madeja v. Olympic Packers, 310 F.3d
628, 636 (9th Cir. 2002) (holding that after a defendant
files a responsive pleading, leave to amend is not
appropriate if the “amendment would cause prejudice to
the opposing party, is sought in bad faith, is futile, or
creates undue delay.”). “A proposed amended
complaint is futile if it would be immediately subject to
dismissal. Thus, the proper test to be applied when
determining the legal sufficiency of a proposed amendment is
identical to the one used when considering the sufficiency of
a pleading challenged under Rule 12(b)(6).” Nordyke
v. King, 644 F.3d 776, 788 (9th Cir. 2011). To survive a
motion to dismiss under Rule 12(b)(6), a complaint must
contain “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
Leave to Amend the Scheduling Order under Fed.R.Civ.P.
Plaintiffs seek to modify the Rule 16 Scheduling Order to add
a claim for failure to pay overtime wages under California
state law, Plaintiffs must show they have good cause to make
such an amendment. When determining whether a party has shown
good cause, the standard “primarily considers the
diligence of the party seeking amendment.” See
Johnson, 975 F.2d at 607-609. To determine if a party
has acted diligently, a court may look to: (1) whether the
party was diligent in assisting the court in creating a
workable Rule 16 order; (2) whether the party's
noncompliance with the Rule 16 deadline occurred because of
the development of matters that could not have been
reasonably foreseen or anticipated at the time of the Rule 16
scheduling conference; and (3) whether the party was diligent
in seeking amendment of the Rule 16 order after it became
apparent they could not comply with it. Morgal v.
Maricopa Cty. Bd. of Sup'rs, 284 F.R.D. 452, 460 (D.
case, the Court recognizes that Plaintiffs were diligent both
in assisting in the creation of the Rule 16 Scheduling Order
and in seeking this amendment of the Rule 16 Scheduling
Order, and Defendants have provided no argument to the
contrary. The question here is whether Plaintiff's
request to amend the Rule 16 deadline is ...