United States District Court, D. Arizona
HONORABLE ROSEMARY MÁRQUEZ UNITED SATES DISTRICT
before the Court is Plaintiffs William and Carolyn
Donges' Motion to Amend Complaint. (Doc.
For the following reasons, Plaintiffs' request for leave
to amend will be denied.
April 23, 2018, the Court issued a Scheduling Order setting a
deadline of May 18, 2018, to amend pleadings. (Doc. 32 at 1.)
On May 18, 2018, Plaintiffs requested and were granted leave
to file the operative First Amended Complaint. (Docs. 33, 34,
August 2, 2018, the parties jointly requested an extension of
the deadline to complete discovery, which the Court granted.
(Docs. 39, 40.) The parties did not request an extension of
the already-expired amendment deadline. (See Doc.
on the parties' summary judgment motions was completed on
January 25, 2019. (Docs. 76, 77.) Plaintiffs filed their
Motion to Amend Complaint on February 5, 2019. (Doc. 78.)
They seek to add two new claims. (See id.)
Standard of Review
motion was filed more than eight months after the May 18,
2018 amendment deadline. Accordingly, their motion is
properly examined first under Federal Rule of Civil Procedure
16(b)(4) as a motion to amend the Scheduling Order.
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th
Cir. 2000) (citing Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 607-09 (9th Cir. 1992)). Rule
16(b)(4) provides that a scheduling order “may be
modified only for good cause and with the judge's
consent.” “This standard ‘primarily
considers the diligence of the party seeking the
amendment.'” Coleman, 232 F.3d at 1294
(quoting Johnson, 975 F.2d at 609). If the moving
party “was not diligent, the inquiry should end.”
Johnson, 975 F.2d at 609; see Wong v. Regents of
Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005)
(“Parties must understand that they will pay a price
for failure to comply strictly with scheduling and other
orders . . . .”).
party seeking to amend shows good cause under Rule 16(b)(4),
he or she must then show that the amendment would be proper
under the liberal requirements of Rule 15(a).
Johnson, 975 F.2d at 608 (citing Forstmann v.
Culp, 114 F.R.D. 83, 85 (M.D. N.C. 1987)). The district
court has discretion in determining whether to grant or deny
leave to amend, Foman v. Davis, 371 U.S. 178, 182
(1962), but leave should freely be given “when justice
so requires, ” Fed.R.Civ.P. 15(a)(2). In determining
whether to grant leave to amend under Rule 15(a), the Court
considers whether there has been “‘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 by
virtue of allowance of the amendment, futility of amendment,
etc.'” Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam)
(quoting Foman, 371 U.S. at 182).
have not shown good cause under Rule 16(b)(4) for allowing
their untimely motion. Two circumstances show that they were not
diligent. First, they concede that they have been in
possession of the evidence on which the proposed amendment is
based at least since the end of discovery, on September 21,
2019. Thus, all the facts necessary for
Plaintiffs to bring their proposed claims were in their
possession months before they made their request (and
probably before they filed this lawsuit). Second, Plaintiffs
claim they only became aware of the legal significance of
such evidence while preparing their response to
Defendant's Motion for Summary Judgment. The response was
filed on January 10, 2019. Even assuming it was reasonable
for Plaintiffs to identify their proposed claims so long
after discovery, they still waited approximately one month to
file their motion.
Plaintiffs were not diligent, they cannot show good cause
under Rule 16(b)(4). Johnson, 975 F.2d at 609. The
Court therefore declines to amend the Scheduling Order and
will deny Plaintiffs' Motion to Amend Complaint as
the Court finds that the Foman factors weigh against
granting Plaintiffs leave to amend. The parties' summary
judgment motions are fully briefed. If Plaintiffs were
granted leave to add new claims, Defendant would be entitled
to time to file an answer, to conduct discovery, and to file
another summary judgment motion on those claims. Thus, the
amendment would clearly result in undue delay. Furthermore,
the necessity of reopening discovery on Plaintiff's new
claims would prejudice Defendant.See Lockheed Martin Corp.
v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir.
1999) (“A need to reopen discovery and therefore delay
the proceedings supports a ...