Smith-Baker v. TMI Hospitality Incorporated et al.

Filing 41

ORDER - Striking Plaintiff's Third Amended Complaint (Doc. #40 ). Plaintiff may file a motion to amend pursuant to Federal Rules of Civil Procedure 15(a)(2) and 16 and Local Rule 15.1(a) by 6/26/2017. Signed by Judge John J Tuchi on 6/15/17. (DXD)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Patricia Smith-Baker,
Plaintiff,

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ORDER

v.

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No. CV-16-02733-PHX-JJT

TMI Hospitality Incorporated, et al.,

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Defendants.

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On April 3, 2017, the Court issued its Scheduling Order (Doc. 32), which included

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that “Motions to amend the complaint and to join additional parties shall be filed no later

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than May 26, 2017.” On May 30, May 31, and June 12, 2017, Plaintiff filed Amended

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Complaints (Docs. 36, 37, 40) without filing a Motion to Amend the Complaint, as

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required by Federal Rule of Civil Procedure 15(a)(2), and without complying with

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Federal Rule of Civil Procedure 16(b)(4) and Local Rule 15.1(a).

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A party may amend a complaint once as a matter of course within 21 days after

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serving it, or within 21 days of service of, among others, a Rule 12(b)(6) motion. Fed. R.

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Civ. P. 15(a). In all other circumstances, absent the opposing party’s written consent, a

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party must seek leave to amend from the court. Fed. R. Civ. P. 15(a)(2). Although the

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decision whether to grant or deny a motion to amend is within the trial court's discretion,

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“Rule 15(a) declares that leave to amend shall be freely given when justice so requires.”

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Foman v. Davis, 371 U.S. 178, 182 (1962) (citation and internal quotations omitted). “In

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exercising its discretion with regard to the amendment of pleadings, a court must be

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guided by the underlying purpose of Rule 15–to facilitate a decision on the merits rather

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than on the pleadings or technicalities.” Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir.

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1987) (citation and internal quotations omitted).

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However, the policy in favor of allowing amendments is subject to limitations.

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After a defendant files a responsive pleading, leave to amend is not appropriate if the

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“amendment would cause prejudice to the opposing party, is sought in bad faith, is futile,

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or creates undue delay.” Madeja v. Olympic Packers, 310 F.3d 628, 636 (9th Cir. 2002)

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(citation and internal quotations omitted). “Futility alone can justify the denial of a

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motion for leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003).

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Here, Defendants have already answered Plaintiff’s prior Complaint (Doc. 24),

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and the period in which Plaintiff could have amended her Complaint as a matter of course

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has passed. As a result, absent Defendants’ written consent, Plaintiff must file a motion to

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amend in which Plaintiff demonstrates that her proposed amendments are not futile and

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do not cause undue delay or otherwise prejudice Defendants.

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In addition, Local Rule 15.1(a) requires a party moving for leave to amend a

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complaint to attach a copy of the proposed amended complaint as an exhibit to the

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motion, “which must indicate in what respect it differs from the pleading it amends, by

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bracketing or striking through the text to be deleted and underlining the text to be added.”

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Plaintiff’s proposed amended Complaints (Docs. 36, 37, 40) do not comply with these

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provisions.

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Finally, Federal Rule of Civil Procedure 16(b)(4) provides that the deadlines in the

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Scheduling Order “may be modified only for good cause and with the judge’s consent.”

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A motion to amend the Complaint filed after the deadline set forth in the Scheduling

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Order is equivalent to a motion to amend the case schedule, which must meet the “good

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cause” requirement of Rule 16(b)(4). See Morgal v. Maricopa Cty. Bd. of Supervisors,

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284 F.R.D. 452, 459 (D. Ariz. 2012). “Rule 16(b)’s ‘good cause’ standard primarily

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considers the diligence of the party seeking the amendment.” Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Thus, a party moving to amend the

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Complaint must first demonstrate that she worked diligently to comply with the schedule

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as set forth in the Scheduling Order. Id. at 459-60. Plaintiff makes no such showing here.

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Because Plaintiff did not file a motion requesting leave to file an amended

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Complaint, as required by Rule 15(a)(2), did not demonstrate that she was diligent during

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the period set forth in the Scheduling Order for amending the complaint but was

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nevertheless unable to timely file a motion to amend, as required by Rule 16(b)(4), and

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did not attach an exhibit indicating how the amended Complaint differs from the prior

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Complaint, as required by Local Rule 15.1(a), the Court must strike Plaintiff’s latest

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amended Complaint (Doc. 40). The Court will give Plaintiff one opportunity to file a

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Motion to Amend that complies with all of the relevant Rules by June 26, 2017.

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IT IS THEREFORE ORDERED striking Plaintiff’s Third Amended Complaint

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(Doc. 40). Plaintiff may file a motion to amend pursuant to Federal Rules of Civil

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Procedure 15(a)(2) and 16 and Local Rule 15.1(a) by June 26, 2017.

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Dated this 15th day of June, 2017.

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Honorable John J. Tuchi
United States District Judge

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