Seldon v. Magedson et al

Filing 27

ORDER Defendant's motion to strike the second amended complaint (Doc. 23 ) is granted. Plaintiff's motion seeking leave to file second amended complaint (Doc. 25 ) is denied. Signed by Judge David G Campbell on 9/19/2013.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Phillip Seldon,

No. CV-13-0072 PHX DGC
Plaintiff,

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ORDER

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v.

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Edward Magedson a/k/a Ed Magedson;
et al.,

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Defendants.

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Defendant Xcentric Ventures LLC (“Xcentric”) has filed a motion to strike the

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second amended complaint. Doc. 23. Pro se Plaintiff filed a response to the motion

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(Doc. 24), and a cross-motion seeking in the alternative leave of Court to file a second

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amended complaint (Doc. 25).

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response to Plaintiff’s cross-motion. Doc. 26. No party has requested oral argument.

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For the reasons discussed below, the Court will grant the motion to strike and deny

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Plaintiff’s cross-motion.

Defendants Xcentric and Edward Magedson filed a

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Plaintiff filed a complaint on January 1, 2013. Doc. 1. On March 13, 2012,

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Plaintiff filed a first amended complaint. Doc. 11. The Court’s Case Management Order,

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entered May 17, 2013, established a deadline for amending pleadings and adding parties:

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2.
Deadline for Joining Parties, Amending Pleadings, and Filing
Supplemental Pleadings. The deadline for joining parties, amending
pleadings, and filing supplemental pleadings is 30 days from the date of
this Order.

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Doc. 18 at 1. The 30-day deadline expired on June 17, 2013. See Fed. R. Civ. P. 6(a)(1).

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Plaintiff filed a second amended complaint on that day. Doc. 22.

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Defendant Xcentric’s motion argues that the Court should strike the second

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amended complaint because Plaintiff filed it without “the opposing party’s written

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consent or the court’s leave” as required by Rule 15(a)(2) of the Federal Rules of Civil

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Procedure. Doc. 23 at 1. In response, Plaintiff argues that the case management order

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“made no mention that permission had to be obtained in order to make the amendment,”

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and that Plaintiff “previously amended [his] complaint with no objection or consent on

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the part of [Defendant Xcentric’s counsel] and as such had no knowledge that court

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permission was required.” Doc. 24 at 1.

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Pro se litigants are bound by the rules of civil procedure. See King v. Atiyeh, 814

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F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure

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that govern other litigants.”). The Court’s order setting the Rule 16 case management

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conference so advised Plaintiff. See Doc. 14 at 6 (“The parties are expected to comply

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fully with the Federal and Local Rules of Civil Procedure[.]”). In addition, during the

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Case Management Conference held on May 9, 2013 (Doc. 17), the Court advised Plaintiff

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that he should obtain a current copy of the Federal Rules of Civil Procedure and follow

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all court orders.

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Rule 15(a)’s requirements is not well taken. Because Plaintiff filed the second amended

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complaint in violation of Rule 15(a)(2), the Court will grant Defendant’s motion to strike.

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In his cross-motion, Plaintiff argues that he had no knowledge of Rule 15(a)(2),

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that the second amended complaint does not prejudice Defendants, and that it asserts

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valid claims. Doc. 25 at 2-3. In response, Defendants submit that the Court should deny

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Plaintiff leave for the following reasons: (1) Plaintiff has not demonstrated good cause to

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modify the case management order as required by Rule 16(b)(4); (2) Plaintiff did not file

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a redline version of the second amended complaint indicating how it differs from the first

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amended complaint as required by Local Rule 15.1(a); and (3) the substance of Plaintiff’s

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amendment is futile. Doc. 26 at 2.

As a result, Plaintiff’s assertion that he lacked knowledge of

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Deadlines established in case management orders may “be modified only for good

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cause[.]” Fed. R. Civ. P. 16(b)(4); see Johnson v. Mammoth Recreations, Inc., 975 F.2d

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604, 608 (9th Cir. 1992) (“The scheduling order ‘controls the subsequent course of the

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action’ unless modified by the court.”) (quoting Fed. R. Civ. P. 16(a)). Good cause exists

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when a deadline “cannot reasonably be met despite the diligence of the party seeking the

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amendment.” Johnson, 975 F.2d at 609; see also Coleman v. Quaker Oats Co., 232 F.3d

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1271, 1294 (9th Cir. 2000). Plaintiff does not argue diligence or good cause. Rather, he

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argues that the amendment is valid and will not cause prejudice. These arguments are not

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relevant. In determining whether to extend a Rule 16 deadline, the focus is on the

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diligence of the moving party, not the absence of prejudice. “Although the existence or

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degree of prejudice to the party opposing the modification might supply additional

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reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons for

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seeking modification. If that party was not diligent, the inquiry should end.” Johnson,

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975 F.2d at 609 (citation omitted). Plaintiff does not argue that he was diligent, and the

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Court concludes that the amendment deadline could have been met through reasonable

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diligence. The Court therefore will deny the cross-motion for leave to amend.

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Plaintiff again is advised that although he is proceeding pro se, he must become

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familiar with and follow the Federal Rules of Civil Procedure and the Local Rules. See

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King, 814 F.2d at 567; Carter v. Comm’r of Internal Revenue, 784 F.2d 1006, 1008 (9th

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Cir. 1986) (“Although pro se, [plaintiff] is expected to abide by the rules of the court in

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which he litigates.”). The Federal Rules of Civil Procedure are available at the following

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Internet website: www.law.cornell.edu/rules/frcp/. A copy of the Court’s Local Rules of

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Civil Procedure may be obtained in the Clerk’s Office and are available online at the

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Court’s Internet website: www.azd.uscourts.gov (follow hyperlink titled “Rules, General

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Orders & Forms”). Plaintiff is further advised that if he fails to prosecute this action or

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comply with the rules or any Court order, the Court may dismiss the action with prejudice

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pursuant to Rule 41(b). See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).

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IT IS ORDERED:

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Defendant’s motion to strike the second amended complaint (Doc. 23) is
granted.

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Plaintiff’s motion seeking leave to file second amended complaint
(Doc. 25) is denied.

Dated this 19th day of September, 2013.

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