Britz Fertilizers, Inc. v. Bayer Corporation et al

Filing 217

ORDER Requesting Supplemental Briefing signed by Judge Oliver W. Wanger on 1/27/2010. 199 MOTION to AMEND the 40 Amended Complaint previously set for 2/1/2010 has been CONTINUED to 3/22/2010 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Moving party to submit supplemental briefing by 2/4/2010, Opposition due 2/11/2010, and reply due 2/18/2010.)(Gaumnitz, R)

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BRITZ FERTILIZERS, INC., Plaintiff, v. BAYER CORPORATION; BAYER CROPSCIENCE, LP; et al., Defendants. I. Before the court is

1:06-CV-00287-OWW-DLB ORDER REQUESTING SUPPLEMENTAL BRIEFING

INTRODUCTION Plaintiff Britz Fertilizers, Inc.'s

("Britz") motion for leave to file a Second Amended Complaint. Britz seeks to add "alternative, but unpleaded" (Doc. 199 at 2) fraud claims against Bayer Corporation and Bayer CropsScience, LP ("Bayer"). Bayer opposes the motion. II. SUPPLEMENTAL BRIEFING

Britz's motion is made "pursuant to Rule 15(a)." (Doc. 199 at 2.) Britz's memorandum of points and authorities, Bayer's

opposition brief, and Britz's reply focus exclusively on whether leave to amend is proper under Rule 15 and associated case law. Rule 15, however, is not the only applicable rule. In this case, the amended Scheduling Conference Order set the deadline for filing "[a]ll Non-Dispositive Pre-Trial Motions" on "April 20, 2009." (Doc. 96.)1 Britz filed its motion for leave to

file a Second Amendment Complaint, a non-dispositive motion, on November 6, 2009, over six months past the deadline.

The deadline set for dispositive motions is May 4, 2009. 1

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Generally, a motion to amend a pleading is analyzed under Rule However, where, as here, a party moves to amend its pleading

after a deadline set in the scheduling conference order, the motion is also subject to Rule 16's "good cause" standard. See Fed. R. Civ. P. 16(b); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). The movant must first show "good cause" under

Rule 16 for modifying the scheduling conference order, i.e., good cause for not having filed a motion to amend before the deadline. See Johnson, 975 F.2d at 608-09; see also Coleman, 232 F.3d at 1294. Rule 16's good cause standard "primarily considers the

diligence of the party seeking the amendment." Johnson, 975 F.2d at 609. If good cause exists under Rule 16, the movant must then

demonstrate that amendment of its pleading is proper under Rule 15. Id. at 608.2 The parties have not briefed whether "good cause" exists under Rule 16. To properly analyze Britz's motion, the parties are

ordered to submit supplemental briefing on whether good cause exists under Rule 16. Britz, the moving party, is ordered to

submit initial supplemental briefing, not to exceed ten (10) pages, by February 4, 2010. Any opposition to Britz's supplemental

briefing is due by February 11, 2010, and shall not exceed seven (7) pages. Any reply is due by February 18, 2010, and shall not

exceed five (5) pages.

A court may treat a belated motion to amend the pleadings as a motion to amend the scheduling order. See Johnson, 975 F.2d at 608-09. 2

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The hearing scheduled on Britz's motion for leave to file a Second Amendment Complaint (Doc. 199), currently set for February 1, 2010, is VACATED. IT IS SO ORDERED. Dated: 9i274f January 27, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE The motion is reset for March 22, 2010.

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