United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
before the Court is Plaintiff BBK Tobacco & Foods,
LLP's (“Plaintiff”) motion to amend the
scheduling order and for leave to file a second amended
complaint and first amended answer. (Doc. 109). Defendants
Skunk, Inc. and Vatra, Inc. (“Defendants”) have
responded, (Doc. 114), and Plaintiff has replied, (Doc. 117).
The Court now rules on the motion.
scheduling conference, the Court issued its scheduling order
on June 18, 2019. (Doc. 63). The scheduling order specified
that “any motion to amend the Complaint shall be filed
no later than August 9, 2019.” (Doc. 63 at
1-2). That same day, Plaintiff filed three motions under
Federal Rule of Civil Procedure (“Rule”) 12,
triggering the parties' obligations under this
District's Mandatory Initial Disclosure Pilot Program
(“MIDP”). (See Doc. 4). The parties
exchanged their initial MIDP responses on June 27, 2019.
(Docs. 71, 72).
early July, however, the parties found themselves embroiled
in a discovery dispute. (Docs. 109 at 4; 114 at 4). The
gravamen of this dispute was Defendants' request that
Plaintiff run additional search terms for responsive ESI.
(Docs. 109 at 4; 114 at 5). This Court held a hearing to
resolve the dispute on September 5, 2019, and ultimately
sustained Plaintiff's objections to Defendants'
requests for more initial disclosure without prejudice to
Defendants propounding proper discovery requests in the
future. (Doc. 101 at 2). During this time, Plaintiff elected
to “put off a careful review” of Defendants'
initial production until after the resolution of the
discovery dispute. (Doc. 109 at 6).
point after the hearing, Plaintiff finally undertook an
“in-depth review” of Defendants' initial
production and found “several images” that it
claims show that Skunk had “misuse[d] the trademark
registration symbol and even the copyright registration
symbol.” (Docs. 109 at 6; 109-1 at 100, 102, 104-05).
Plaintiff now seeks to amend its complaint to add a claim for
relief based on these allegations, (Doc. 109-1 at 27), and to
amend its answer to Defendant Skunk's counterclaims to
add an affirmative defense of unclean hands, (Doc. 109-2 at
17), under Rule 16(b) and Rule 15(a).
as here, the scheduling order's deadline to amend
pleadings has expired, a party seeking to amend its pleadings
must satisfy both Rule 16 and Rule 15. Acosta v. Austin
Elec. Servs. LLC, 325 F.R.D. 325, 328 (D. Ariz. 2018)
(citing Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 608 (9th Cir. 1992)). Accordingly, the Court must
first analyze Plaintiff's motion under Rule 16(b), and
then, only if necessary, under Rule 15(a).
argues that amending the scheduling order is warranted here
because it “satisf[ied] its disclosure obligations and
[sought] a resolution of Defendants' demands for further
disclosure, and . . . only learned of the factual basis for
its requested amendments after the deadline to amend.”
(Doc. 109 at 8). Defendants counter that Plaintiff proffers
insufficient reasons for not reviewing its initial
production, failing to show good cause. (Doc. 114 at 8).
general, ” under Rule 16(b), a “scheduling order
can only be modified ‘upon a showing of good
cause.'” Zivkovic v. S. Cal. Edison Co.,
302 F.3d 1080, 1087 (9th Cir. 2002) (quoting
Johnson, 975 F.2d at 608). “Unlike Rule
15(a)'s liberal amendment policy . . ., Rule 16(b)'s
‘good cause' standard primarily considers the
diligence of the party seeking the amendment.”
Johnson, 975 F.2d at 609. Thus, a court should
modify a scheduling order's deadline when the movant
shows “it cannot reasonably be met despite [the
movant's] diligence.” Id. (quoting
Fed.R.Civ.P. 16 advisory committee's notes to 1983
amendment). “[C]arelessness is not compatible with a
finding of diligence and offers no reason for a grant of
relief.” Id. To evaluate the movant's
diligence, courts often examine:
(1) the party's diligence in assisting the court in
creating a workable Rule 16 order; (2) whether the
party's noncompliance with a Rule 16 deadline occurred
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) whether the party was
diligent in seeking amendment of the Rule 16 order once it
became apparent the party could not comply.
Acosta, 325 F.R.D. at 328 (citing Morgal v.
Maricopa Cty. Bd. of Supervisors, 284 F.R.D.
452, 460 (D. Ariz. 2012)); see also Upton v. Corizon
Health Care Inc., No. CV-17-01502-PHX-JAT, 2019 WL
581274, at *3 (D. Ariz. Feb. 12, 2019). “Although the
existence or degree of prejudice to the party opposing
modification might supply additional reasons to deny a
motion, the focus of the inquiry is upon the moving
party's reasons for seeking modification.”
Johnson, 975 F.2d at 609.
first asserts that it was diligent because it did not
discover the factual basis underlying its proposed amendments
until after the deadline's expiration. (Doc. 109 at 9).
Although discovering new information can sometimes justify
modifying a scheduling order, see Leibel v. City of
Buckeye, No. CV-18-01743-PHX-DWL, 2019 WL 4736784, at *2
(D. Ariz. Sept. 27, 2019), Plaintiff's argument is
unpersuasive given that it not only possessed the relevant
materials prior to the deadline's expiration, it had them
for six weeks. The instant case is thus different from those
Plaintiff cites for support, which each involved
circumstances where the new information was either contained
in discovery produced after the expiration of the applicable
deadline, id.; Inter-coastal Elecs., Inc. v.
Boston Laser, Inc., No. CV 05-2488-PHX-ROS, 2007 WL
9724307, at *2 (D. Ariz. June 15, 2007) (explaining that the
knowledge derived from the documents already in the
defendant's possession would not have supported the
defendant's additional claims); Humphreys &
Partners, Architects, L.P. v. George F. Tibsherany,
Inc., No. CV-03-0169-PHX-SMM, 2006 WL 8440623, at *1-2
(D. Ariz. ...