Moore v. Sidhu, et al.

Filing 45

ORDER GRANTING 34 Plaintiff's Motion to Amend. The hearing on Plaintiff's motion to amend scheduled for April 18, 2011, is VACATED; Plaintiff shall file the first amended complaint within two (2) days from the date of this order; and Defendants shall have twenty-one (21) days from the date Plaintiff files the first amended complaint to file a responsive pleading. Order signed by Magistrate Judge Sheila K. Oberto on 4/12/2012. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RONALD MOORE,

CASE NO. 1:11-cv-00172-LJO-SKO

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Plaintiff,

ORDER GRANTING PLAINTIFF'S
MOTION TO AMEND

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v.
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(Docket No. 34)
JASWINDER SINGH SIDHU, et al.,

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Defendants.
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/
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I.

INTRODUCTION

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On February 24, 2012, Plaintiff Ronald Moore ("Plaintiff") filed a motion for leave to file

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a first amended complaint. (Doc. 34.) On March 23, 2012, Defendants Jaswinder Singh Sidhu

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("Sidhu") and Kasmira Singh Narwal ("Narwal") dba Scotty's Liquor Store filed a statement of

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non-opposition to Plaintiff's motion. (Doc. 42.) Defendant Louis A. Gomez, Co-Trustee of the

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Louis A. Gomez and Lydia A. Gomez Revocable Living Trust Dated May 4, 2007, ("Gomez") did

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not file an opposition.

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The Court has reviewed the motion and supporting documents and has determined that this

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matter is suitable for decision without oral argument pursuant to Local Rule 230(g); as such, the

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hearing currently scheduled for April 18, 2012, is VACATED. For the reasons set forth below,

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Plaintiff's motion to file an amended complaint is GRANTED.

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II. BACKGROUND AND PROCEDURAL HISTORY

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On January 31, 2011, Plaintiff filed a complaint against Defendants Sidhu, Narwal, Gomez,

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and Lydia A. Gomez, Co-Trustee of the Louis A. Gomez and Lydia A. Gomez Revocable Living

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Trust Dated May 4, 2007, ("Lydia"), alleging causes of action under the American with Disabilities

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Act of 1990, the Disabled Persons Act, the Unruh Civil Rights Act, and for Denial of Full and Equal

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Access to Public Facilities. (Doc. 2.) On February 22, 2011, Defendant Gomez filed an answer, and

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on March 7, 2011, Defendants Sidhu and Narwal filed an answer.1 (Docs. 6, 15.)

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A scheduling conference was held on November 29, 2011, and the Court issued a scheduling

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order on December 2, 2011. (Docs. 29, 32.) The scheduling order provided that any requests to

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amend the pleadings must be filed by February 24, 2012. (Doc. 32, 2:6-16.)

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On February 17, 2012, an inspection of Defendants' facility was conducted by a California

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Certified Access Specialist. (Doc. 34-3, Moore Decl., ¶ 2.) On February 24, 2012, Plaintiff's

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counsel received the Specialist's report identifying all accessibility barriers. (Doc. 34-3, Moore

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Decl., ¶ 2.) On that date, Plaintiff filed the instant motion to amend. (Doc. 34.)

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A settlement conference was held on March 22, 2012. (Doc. 40.) The case did not settle,

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but a further settlement conference was scheduled for April 11, 2012. (Doc. 40.) As such, the

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hearing on Plaintiff's motion to amend, originally scheduled for April 4, 2012, was continued to

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April 18, 2012, to allow for ongoing settlement negotiations. (Doc. 41.)

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On April 9, 2012, the parties filed a stipulation and proposed order requesting that the

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settlement conference set for April 11, 2012, be continued to June 5, 2012, to allow the parties

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additional time to "meaningfully participate in the settlement discussions." (Doc. 43, 2:1-2.) The

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Court approved the stipulation and continued the settlement conference. (Doc. 44.) Accordingly,

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the Court now considers Plaintiff's motion to amend. (Doc. 34.)

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Defendant Lydia was dismissed from the case on November 30, 2011. (Doc. 31.)

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III. DISCUSSION

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The Court issued a scheduling order on December 2, 2011, stating that "[a]ny motions or

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stipulations requesting leave to amend the pleadings must be filed by no later than 2/24/2012." (Doc.

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32, 2:8-9.) The parties were advised that "[a]ll proposed amendments must (A) be supported by

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good cause pursuant to Fed. R. Civ. P. 16(b) if the amendment requires any modification to the

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existing schedule, . . . and (B) establish, under Fed. R. Civ. P. 15(a), that such an amendment is not

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(1) prejudicial to the opposing party, (2) the product of undue delay, (3) proposed in bad faith, or

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(4) futile." (Doc. 32, 2:11-16 (citations omitted).)

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A.

Plaintiff Exhibited Diligence and Good Cause as Required under Federal Rule of Civil
Procedure 16(b)

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1.

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Federal Rule of Civil Procedure 16(b) provides that the district court must issue a scheduling

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order that limits the time to join other parties, amend the pleadings, complete discovery, and file

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motions. Fed. R. Civ. P. 16(b)(1)-(3). Once in place, "[a] schedule may be modified only for good

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cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). The "good cause" requirement of

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Rule 16 primarily 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). "The district court may modify the pretrial

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schedule if it cannot reasonably be met despite the diligence of the party seeking the extension." Id.

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(internal citation and quotation marks omitted).

Legal Standard

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Good cause may be found to exist where the moving party shows, for example, that it:

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(1) diligently assisted the court in recommending and creating a workable scheduling order, see In

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re San Juan Dupont Plaza Hotel Fire Litig., 111 F.3d 220, 228 (1st Cir. 1997), (2) is unable to

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comply with the deadlines contained in the scheduling order due to issues not reasonably foreseeable

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at the time of the scheduling order, see Johnson, 975 F.3d at 609, and (3) was diligent in seeking an

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amendment once the party reasonably knew that it could not comply with the scheduling order, see

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Eckert Cold Storage, Inc. v. Behl, 943 F. Supp. 1230, 1233 (E.D. Cal. 1996); see also Jackson v.

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Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999). "If [the] party was not diligent, the inquiry

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should end." Johnson, 975 F.2d at 609. If the Court finds that there is good cause to modify the
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schedule, the court then turns to Rule 15(a) to determine whether the amendment sought should be

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granted. Jackson, 186 F.R.D. at 607 ("As the Ninth Circuit explained in [Johnson], once the district

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court has filed a pretrial scheduling order pursuant to Rule 16 which establishes a timetable for

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amending pleadings, a motion seeking to amend pleadings is governed first by Rule 16(b), and only

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secondarily by Rule 15(a).").

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2.

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As a scheduling order issued in this action (Doc. 32), the "schedule may be modified only

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for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). Whether good cause exists

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to modify a scheduling order rests on whether the party seeking the modification has been diligent.

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See Johnson, 975 F.2d at 609. Here, Plaintiff brought this motion within the time constraints set

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forth by the Court in the scheduling order (Doc. 32, 2:6-16), and did not unduly delay in seeking

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amendment.

Analysis

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Plaintiff indicates that, although the scheduling order was issued on December 2, 2011,

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"[d]ue to holiday and vacation schedules and the notice requirement under Federal Rule of Civil

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Procedure 34(a)(2), the site inspection [of Defendants' facility] did not take place until February 17,

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2012, and the accessibility report was not received from the consultant until the morning of February

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24, 2012. (Doc. 34-1, 2:15-18; see also Doc. 34-3, Moore Decl., ¶ 2.) After reviewing the

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accessibility report, Plaintiff determined that there were additional barriers related to his disability

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claims. (See Doc. 34-1, 3:18-26.) As February 24, 2012, was the Court-imposed deadline to file a

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request to amend the pleadings (Doc. 32, 2:6-16), Plaintiff's counsel attempted to contact Defendants'

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counsel regarding a stipulated filing. (Doc. 34-3. Moore Decl., ¶ 3.) Plaintiff's counsel was able to

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procure a conditional approval from counsel for Defendants Sidhu and Narwal, but was unable to

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reach counsel for Defendant Gomez. (Doc. 34-3, Moore Decl., ¶ 3.) As such, Plaintiff filed the

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instant motion.

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Additionally, Plaintiff is not currently seeking to modify the schedule. Pursuant to the April

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9, 2012, stipulation to continue the settlement conference, the parties are currently obtaining

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information to "meaningfully participate in settlement discussions." (Doc. 43, 1:26-2:2.) The parties

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have not requested any scheduling modifications at this time.
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As Plaintiff is not seeking to modify the scheduling order, brought this motion within the

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time period authorized by the Court, and filed the motion on the date that Plaintiff determined that

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amendment was proper, Plaintiff has been diligent in seeking amendment of the complaint. As such,

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Plaintiff has shown good cause to request amendment. Thus the Court turns to Rule 15(a) to

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determine whether the amendment sought should be granted. Jackson, 186 F.R.D. at 607.

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B.

Plaintiff's Amendment is Warranted Under Federal Rule of Civil Procedure 15(a)

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1. Legal Standard

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Federal Rule of Civil Procedure 15 provides that a party may amend its pleading only by

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leave of court or by written consent of the adverse party and that leave shall be freely given when

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justice so requires. Fed. R. Civ. P. 15(a)(1)-(2). The Ninth Circuit has instructed that the policy

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favoring amendments "is to be applied with extreme liberality." Morongo Band of Mission Indians

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v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).

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The factors commonly considered to determine the propriety of a motion for leave to amend

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are: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and (4) futility of amendment.

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Foman v. Davis, 371 U.S. 178, 182 (1962). The Ninth Circuit has held that it is the consideration

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of prejudice to the opposing party that carries the greatest weight. Eminence Capital, LLC v. Aspeon,

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Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Absent prejudice, or a strong showing of any of the

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remaining Foman factors, a presumption in favor of granting leave to amend exists under Rule 15(a).

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Id. Further, undue delay alone is insufficient to justify denial of a motion to amend. Bowles v.

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Reade, 198 F.3d 752, 758 (9th Cir. 1999). Finally, "liberality in granting leave to amend is not

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dependent on whether the amendment will add causes of action or parties." DCD Programs, Ltd.

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v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Contra Union Pac. R.R. Co. v. Nev. Power Co.,

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950 F.2d 1429, 1432 (9th Cir. 1991) ("Amendments seeking to add claims are to be granted more

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freely than amendments adding parties.").

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2.

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Plaintiff is seeking to amend the complaint to add additional barriers to access that were

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identified during the accessibility inspection. Plaintiff's counsel indicates that "Plaintiff does not

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seek to amend his complaint for any reason other than to list all barriers which relate to his disability

Analysis

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and to provide sufficient particularity in such identification to provide proper notice to Defendants."

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(Doc. 34-3, Moore Decl., ¶ 4.)

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Plaintiff is not seeking the amendment in bad faith, as he provides a credible reason to amend

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the complaint so that all access issues can be addressed. See Doran v. 7–Eleven, Inc., 524 F.3d 1034,

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1047 (9th Cir.2008) ("An ADA plaintiff who has Article III standing as a result of at least one barrier

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at a place of public accommodation may, in one suit, permissibly challenge all barriers in that public

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accommodation that are related to his or her specific disability."). There is not an undue delay in

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Plaintiff's request to amend, as the motion was filed the day that Plaintiff received the inspection

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report identifying additional accessibility barriers. (Doc. 34-3, Moore Decl., ¶ 2.) There appears to

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be no prejudice to Defendants, nor does Plaintiff's amendment appear to be futile, as Defendants

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Sidhu and Narwal filed a statement of non-opposition (Doc. 42), and Defendant Gomez does not

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oppose Plaintiff's motion. Further, "no prejudice to Defendants is likely where the amendments do

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not change the nature of the action and relate to the alleged violations in the original complaint."

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Moore v. CNC Apex Corp., No. 1:10cv01687 LJO DLB, 2011 WL 2473285, at *2 (E.D. Cal. Jun.

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21, 2011).

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As such, Plaintiff's motion to file an amended complaint is GRANTED.

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IV.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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CONCLUSION AND ORDER

The hearing on Plaintiff's motion to amend scheduled for April 18, 2011, is
VACATED;

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2.

Plaintiff's motion to amend his complaint is GRANTED;

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3.

Plaintiff shall file the first amended complaint within two (2) days from the date of

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this order; and

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4.

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Defendants shall have twenty-one (21) days from the date Plaintiff files the first
amended complaint to file a responsive pleading.

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IT IS SO ORDERED.

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Dated:
ie14hj

April 12, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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