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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Phillip Seldon, No. CV-13-0072 PHX DGC Plaintiff, 10 ORDER 11 v. 12 Edward Magedson a/k/a Ed Magedson; et al., 13 Defendants. 14 15 16 Defendant Xcentric Ventures LLC (“Xcentric”) has filed a motion to strike the 17 second amended complaint. Doc. 23. Pro se Plaintiff filed a response to the motion 18 (Doc. 24), and a cross-motion seeking in the alternative leave of Court to file a second 19 amended complaint (Doc. 25). 20 response to Plaintiff’s cross-motion. Doc. 26. No party has requested oral argument. 21 For the reasons discussed below, the Court will grant the motion to strike and deny 22 Plaintiff’s cross-motion. Defendants Xcentric and Edward Magedson filed a 23 Plaintiff filed a complaint on January 1, 2013. Doc. 1. On March 13, 2012, 24 Plaintiff filed a first amended complaint. Doc. 11. The Court’s Case Management Order, 25 entered May 17, 2013, established a deadline for amending pleadings and adding parties: 26 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. 27 28 1 Doc. 18 at 1. The 30-day deadline expired on June 17, 2013. See Fed. R. Civ. P. 6(a)(1). 2 Plaintiff filed a second amended complaint on that day. Doc. 22. 3 Defendant Xcentric’s motion argues that the Court should strike the second 4 amended complaint because Plaintiff filed it without “the opposing party’s written 5 consent or the court’s leave” as required by Rule 15(a)(2) of the Federal Rules of Civil 6 Procedure. Doc. 23 at 1. In response, Plaintiff argues that the case management order 7 “made no mention that permission had to be obtained in order to make the amendment,” 8 and that Plaintiff “previously amended [his] complaint with no objection or consent on 9 the part of [Defendant Xcentric’s counsel] and as such had no knowledge that court 10 permission was required.” Doc. 24 at 1. 11 Pro se litigants are bound by the rules of civil procedure. See King v. Atiyeh, 814 12 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure 13 that govern other litigants.”). The Court’s order setting the Rule 16 case management 14 conference so advised Plaintiff. See Doc. 14 at 6 (“The parties are expected to comply 15 fully with the Federal and Local Rules of Civil Procedure[.]”). In addition, during the 16 Case Management Conference held on May 9, 2013 (Doc. 17), the Court advised Plaintiff 17 that he should obtain a current copy of the Federal Rules of Civil Procedure and follow 18 all court orders. 19 Rule 15(a)’s requirements is not well taken. Because Plaintiff filed the second amended 20 complaint in violation of Rule 15(a)(2), the Court will grant Defendant’s motion to strike. 21 In his cross-motion, Plaintiff argues that he had no knowledge of Rule 15(a)(2), 22 that the second amended complaint does not prejudice Defendants, and that it asserts 23 valid claims. Doc. 25 at 2-3. In response, Defendants submit that the Court should deny 24 Plaintiff leave for the following reasons: (1) Plaintiff has not demonstrated good cause to 25 modify the case management order as required by Rule 16(b)(4); (2) Plaintiff did not file 26 a redline version of the second amended complaint indicating how it differs from the first 27 amended complaint as required by Local Rule 15.1(a); and (3) the substance of Plaintiff’s 28 amendment is futile. Doc. 26 at 2. As a result, Plaintiff’s assertion that he lacked knowledge of -2- 1 Deadlines established in case management orders may “be modified only for good 2 cause[.]” Fed. R. Civ. P. 16(b)(4); see Johnson v. Mammoth Recreations, Inc., 975 F.2d 3 604, 608 (9th Cir. 1992) (“The scheduling order ‘controls the subsequent course of the 4 action’ unless modified by the court.”) (quoting Fed. R. Civ. P. 16(a)). Good cause exists 5 when a deadline “cannot reasonably be met despite the diligence of the party seeking the 6 amendment.” Johnson, 975 F.2d at 609; see also Coleman v. Quaker Oats Co., 232 F.3d 7 1271, 1294 (9th Cir. 2000). Plaintiff does not argue diligence or good cause. Rather, he 8 argues that the amendment is valid and will not cause prejudice. These arguments are not 9 relevant. In determining whether to extend a Rule 16 deadline, the focus is on the 10 diligence of the moving party, not the absence of prejudice. “Although the existence or 11 degree of prejudice to the party opposing the modification might supply additional 12 reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons for 13 seeking modification. If that party was not diligent, the inquiry should end.” Johnson, 14 975 F.2d at 609 (citation omitted). Plaintiff does not argue that he was diligent, and the 15 Court concludes that the amendment deadline could have been met through reasonable 16 diligence. The Court therefore will deny the cross-motion for leave to amend. 17 Plaintiff again is advised that although he is proceeding pro se, he must become 18 familiar with and follow the Federal Rules of Civil Procedure and the Local Rules. See 19 King, 814 F.2d at 567; Carter v. Comm’r of Internal Revenue, 784 F.2d 1006, 1008 (9th 20 Cir. 1986) (“Although pro se, [plaintiff] is expected to abide by the rules of the court in 21 which he litigates.”). The Federal Rules of Civil Procedure are available at the following 22 Internet website: A copy of the Court’s Local Rules of 23 Civil Procedure may be obtained in the Clerk’s Office and are available online at the 24 Court’s Internet website: (follow hyperlink titled “Rules, General 25 Orders & Forms”). Plaintiff is further advised that if he fails to prosecute this action or 26 comply with the rules or any Court order, the Court may dismiss the action with prejudice 27 pursuant to Rule 41(b). See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). 28 -3- 1 IT IS ORDERED: 2 1. 3 4 5 6 Defendant’s motion to strike the second amended complaint (Doc. 23) is granted. 2. Plaintiff’s motion seeking leave to file second amended complaint (Doc. 25) is denied. Dated this 19th day of September, 2013. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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