Cheeks v. General Dynamics et al
Filing
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ORDER granting 44 Plaintiff's Motion to Amend the Scheduling Order and File Amended Complaint. FURTHER ORDERED that Plaintiff shall file her Fourth Amended Complaint (currently lodged at Doc. 44-1) within 5 days of the date of this Order. FURTHER ORDERED amending the Scheduling Order (Doc. 27) solely as follows: All discovery must be completed by 11/1/2013. All dispositive motions shall be filed no later than 12/9/2013. Signed by Senior Judge James A Teilborg on 6/24/2013.(TLB)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Loretta Cheeks,
No. CV-12-01543-PHX-JAT
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Plaintiff,
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v.
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ORDER
General Dynamics Corporation, General
Dynamics C4 Systems, Inc.,
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Defendants.
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Pending before the Court is Plaintiff’s Motion to Amend the Scheduling Order and
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File Amended Complaint (Doc. 44). The Court now rules on the Motion.
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I.
BACKGROUND
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Plaintiff, pro se, filed a Complaint on July 17, 2012. (Doc. 1). Plaintiff filed an
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Amended Complaint on July 19, 2012 (Doc. 3).
After Defendants answered the
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Amended Complaint, the Court granted Plaintiff leave to file a “Third Amended
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Complaint,” which she filed on September 28, 2012 (Doc. 28).
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On September 24, 2012, the Court held a Rule 16 Scheduling Conference and
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entered a Rule 16 Scheduling Order. The Scheduling Order set the deadline for motions
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to amend the complaint as November 12, 2012. (Doc. 27 at 2). On October 26, 2012,
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Defendants answered the “Third Amended Complaint” and filed a Counterclaim (Doc.
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33).
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On March 11, 2013, counsel appeared on behalf of Plaintiff in this case. (Doc.
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38). On March 18, 2013, Plaintiff filed a motion for leave to file a Fourth Amended
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Complaint (Doc. 40). The Court denied Plaintiff’s Motion for Leave to File a Fourth
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Amended Complaint without prejudice because Plaintiff did not discuss the proper
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standard for seeking leave to amend after the Court’s Rule 16 Order setting deadlines for
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amendments expired. (Doc. 42 at 2).
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Thereafter, on April 17, 2013, Plaintiff filed a Motion to Amend Scheduling Order
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and File Amended Complaint. In her Motion, Plaintiff argues that there is good cause to
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amend the Court’s Rule 16 Scheduling Order to allow Plaintiff to file an Amended
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Complaint pursuant to Federal Rule of Civil Procedure 16(b)(4). Plaintiff further argues
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that she should be given leave to amend her complaint pursuant to Federal Rule of Civil
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Procedure 15.
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II.
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Rule 16 states that a Scheduling Order “may be modified only for good cause and
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with the judge’s consent.” Fed. R. Civ. Proc. 16(b)(4). For purposes of the rule, “good
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cause” means the scheduling deadlines cannot be met despite the party’s diligence.
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Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (citing 6A
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Wright, Miller & Kane, Federal Practice and Procedure § 1522.1 at 231 (2d ed.1990)).
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“The pretrial schedule may be modified if it cannot reasonably be met despite the
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diligence of the party seeking the extension. If the party seeking the modification was not
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diligent, the inquiry should end and the motion to modify should not be granted.”
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Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citation and internal
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quotation marks omitted).
LEGAL STANDARD
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To demonstrate diligence under Rule 16’s “good cause” standard, the movant may
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be required to show the following: (1) that he was diligent in assisting the court in
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creating a workable Rule 16 order; (2) that his noncompliance with a Rule 16 deadline
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occurred or will occur, notwithstanding his diligent efforts to comply, because of the
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development of matters which could not have been reasonably foreseen or anticipated at
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the time of the Rule 16 scheduling conference; and (3) that he was diligent in seeking
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amendment of the Rule 16 order, once it became apparent that he could not comply with
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the order. Morgal v. Maricopa County Bd. of Supervisors, 07-CV-0670-PHX-RCB, 2012
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WL 2029719 (D. Ariz. June 6, 2012) (quoting Grant v. United States, 11–CV–00360
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LKK, 2011 WL 5554878, at *4 (E.D. Cal. Nov. 15, 2011), adopted, 11-CV-0360-LKK,
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2012 WL 218959, at *1 (E.D. Cal. Jan. 23, 2012) (other citation omitted)).
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If a party is able to establish good cause pursuant to Federal Rule of Civil
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Procedure 16(b)(4), the burden shifts to the party opposing the amendment to show that
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an amendment should not be allowed pursuant to Federal Rule of Civil Procedure 15
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because of: (1) undue delay; (2) bad faith or dilatory motives on the part of the movant;
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(3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to
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the opposing party; or (5) futility of the proposed amendment. Foman v. Davis, 371 U.S.
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178, 182 (1962); see Richardson v. United States, 841 F.2d 993, 999 (9th Cir. 1988)
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(stating that leave to amend should be freely given unless the opposing party makes “an
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affirmative showing of either prejudice or bad faith”).
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III.
ANALYSIS
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Plaintiff seeks leave to amend her Complaint to add a claim pursuant to the Family
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Medical Leave Act (“FMLA”).1
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amendment because Plaintiff has shown diligence at all stages of this litigation and, once
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Plaintiff retained counsel, she immediately moved for leave to amend to add the FMLA
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claim and clarify the retaliation claim.
Plaintiff argues that the Court should allow this
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In response, Defendants argue that Plaintiff cannot meet the good cause standard
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due to Plaintiff’s own failure to investigate all possible causes of action before filing her
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Complaint. Defendants assert that Plaintiff’s failure, while pro se, to assert all of her
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possible causes of action cannot meet the good cause standard.
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In this case, there is no suggestion that Plaintiff was not diligent in creating the
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Defendants argue that Plaintiff is also attempting to add a new retaliation claim
based on Plaintiff’s 2001 EEOC and OFCCP charges. Plaintiff asserts that she is
clarifying a claim that she previously asserted. The Court will examine whether Plaintiff
has shown good cause to add a retaliation claim in addition to a claim pursuant to the
FMLA.
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Rule 16 Scheduling Order or that Plaintiff was not diligent in seeking to amend the Rule
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16 Scheduling Order after she hired counsel. Rather, the question is whether Plaintiff
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acted diligently such that she could not have reasonably foreseen or anticipated the filing
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of an FMLA claim at the time of the Rule 16 scheduling conference before retaining
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counsel. This is a close question.
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Other Courts to consider this question have found that, when a plaintiff diligently
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pursued the case on all other matters and diligently moved for amendment after obtaining
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counsel, Plaintiff met Rule 16’s good cause standard. See Coles v. Eagle, No. 09-167
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LEK, BMK, 2013 WL 1856002, at *2-3 (D. Hawai‘i April 30, 2013); Jiminez v.
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Sambrano, No. 04cv1833 L(PCL), 2009 WL 937042 at *2 (S.D. Cal. Apr. 6, 2009). In
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this case, Plaintiff has acted diligently on all other matters and, since appearing in the
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case, Plaintiff’s counsel has acted diligently in seeking to amend the complaint.
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Accordingly, the Court finds that Plaintiff has shown good cause to amend the Rule 16
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Scheduling Order.
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Moreover, there is no evidence of undue delay, bad faith, dilatory motives, or
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futility of the proposed amendment. Defendants argue that they will be prejudiced by an
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Amendment because they have engaged in some discovery. However, prior to Plaintiff
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filing her Motion to Amend, very little discovery had actually occurred in this case.
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Accordingly, the Court finds that there is no undue prejudice to Defendants in granting
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Plaintiff leave to amend. Accordingly, Plaintiff’s Motion to Amend is granted.
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Defendants also argue that Plaintiff is attempting to add a jury demand for the first
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time in her proposed amended complaint (Doc. 49). Defendant’s claim that Plaintiff
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seeks to add a jury demand for the first time is wholly unsupported by and contradicted
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by the Record. Plaintiff has included a jury demand in every complaint that she filed.
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The jury demand was included in the caption of each of Plaintiff’s complaints and, as a
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separate section at the end of her complaints. Defendants’ assertion that Plaintiff did not
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previously include a jury demand in her complaints is a blatant misrepresentation to the
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Court. Defendants are warned that, if they continue to make material misrepresentations
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to the Court, the Court will impose appropriate sanctions.
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IV.
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Based on the foregoing,
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IT IS ORDERED that Plaintiff’s Motion to Amend the Scheduling Order and File
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CONCLUSION
Amended Complaint (Doc. 44) is granted.
IT IS FURTHER ORDERED that Plaintiff shall file her Fourth Amended
Complaint (currently lodged at Doc. 44-1) within 5 days of the date of this Order.
IT IS FURTHER ORDERED amending the Court’s Scheduling Order (Doc. 27)
solely as follows:
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IT IS ORDERED that all discovery, including depositions of parties, witnesses,
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and experts, answers to interrogatories, and supplements to interrogatories must be
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completed by November 1, 2013.
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IT IS ORDERED that all dispositive motions shall be filed no later than
December 9, 2013.
Dated this 24th day of June, 2013.
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