Green v. Delgado et al

Filing 43

ORDER Modifying Scheduling Order Extending Deadline for Amendment of Pleadings and Granting Leave for Defendants to File Amended Answers 35 , 38 , 39 , signed by Magistrate Judge Jennifer L. Thurston on 5/20/15. Deadline to File Amended Pleadings: May 22, 2015.(Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:14-cv-00297-LJO-JLT (PC)
ERIC W. GREEN,

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Plaintiff,

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v.

ORDER MODIFYING SCHEDULING
ORDER EXTENDING DEADLINE FOR
AMENDMENT OF PLEADINGS and
GRANTING LEAVE FOR DEENDANTS TO
FILE AMENDED ANSWERS

DELGADO, et al.,
(Docs. 35, 38, 39)

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Defendants.
Deadline to File Amended Pleadings: May 22

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Defendants seek leave to file an amended answer despite that the deadline for doing so has

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passed. The Court finds that good cause exists to amend the scheduling order and the amendment

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is needed to prevent substantial injustice. Thus, the Court GRANTS the motion.
I.

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Modification of Scheduling Order/Amendment of Pleading
A party seeking leave of court to amend a pleading, with implications for the schedule of a

case, must first satisfy Federal Rule of Civil Procedure1 16(b)'s “good cause” standard. Johnson
v. Mammoth Recreations, Inc., 975 F.2d 604, 608–09 (9th Cir.1992). This good cause evaluation

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“is not coextensive with an inquiry into the propriety of the amendment under . . . Rule 15.” Id. at

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609. Rule 16(b)'s good cause standard is not nearly as liberal as that for Rule 15 and focuses

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primarily on the diligence of the moving party, id., and the reasons for seeking modification, C.F.

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The Federal Rules of Civil Procedure will hereinafter be referred to as ARule *.@ Any reference to other statutory
authorities shall so indicate.

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ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir.2011). If the party

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seeking to amend the scheduling order fails to show due diligence, the inquiry should end and the

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court should not grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302

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F.3d 1080, 1087 (9th Cir. 2002).

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If good cause is found to modify a scheduling order under Rule 16, the party next must

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satisfy Rule 15(a). Cf. Johnson, 975 F.2d at 608 (citing approvingly Forstmann v. Culp, 114

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F.R.D. 83, 85 (M.D.N.C.1987) ). Rule 15(a)(2) states “[t]he court should freely give leave [to

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amend its pleading] when justice so requires,” and the Ninth Circuit has repeatedly stressed that

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the standard for granting leave to amend is generous. U.S. v. Corinthian Colleges, 655 F.3d 984,

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995 (9th Cir. 2011); see also Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051;

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Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.2001)(quoting Morongo

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Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990)). “In exercising its

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discretion [regarding granting or denying leave to amend] ‘a court must be guided by the

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underlying purpose of Rule 15 -- to facilitate decision on the merits rather than on the pleadings

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or technicalities.’“ DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987) (quoting

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United States v. Webb, 655 F.2d 977, 979 (9th Cir.1981)).

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Five factors must be considered when assessing the propriety of leave to amend: (1) bad

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faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5)

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whether prior amendment has occurred. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962).

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"Not all of the factors merit equal weight." Eminence Capital, 316 F.3d at 1052. The

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consideration of prejudice to the opposing party carries the greatest weight. Id., citing DCD

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Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir.1987). Prejudice is the “touchstone of the

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inquiry under rule 15(a).” Id., quoting Lone Star Ladies Inv. Club v. Schlotzsky's Inc., 238 F.3d

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363, 368 (5th Cir.2001); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973) (stating

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that “the crucial factor is the resulting prejudice to the opposing party”); cf. DCD Programs, 833

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F.2d at 186–87 (noting that party opposing amendment “bears the burden of showing prejudice”).

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"Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a

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presumption under Rule 15(a) in favor of granting leave to amend." Id., citing Lowrey v. Tex. A
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& M Univ. Sys., 117 F.3d 242, 245 (5th Cir.1997).

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A.

Analysis

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In this case, all four Defendants seek to amend their answers to correct errors.

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Apparently, the original defense attorney did not fully grasp his clients' recollection of events, or

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somehow confused them when he drafted their answers. Plaintiff correctly notes in his opposition

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that substitution of new counsel who has a different plan than prior counsel does not usually

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suffice to show good cause to allow amendment under Rule 16. (See Doc. 40, 3:6-4:22.)

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However, Defendants' original counsel made a number of errors in Defendants answers which

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may be deemed for good cause, because of excusable neglect. Fed. R. Civ. P. 6(b)(1)(B).

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Current defense counsel entered the case on March 2, 2015 and March 20, 2015 and so could not

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have complied with the deadline to amend pleadings as it lapsed approximately a month prior.

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However, on Defendants’ behalf, he has acted diligently in filing these motions to correct the

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error once they were discovered.

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"[W]here . . . the court determines that refusal to allow a modification might result in

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injustice while allowance would cause no substantial injury to the opponent and no more than

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slight inconvenience to the court, a modification should ordinarily be allowed." U.S. v. First Nat.

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Bank of Circle, 652 F.2d 882, 887 (9th Cir. 1981) citing Globe Indemnity Co. v. Capital Ins. &

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Surety Co., 352 F.2d 236, 239 (9th Cir. 1965); DeMarines v. KLM Royal Dutch Airlines, 580 F.2d

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1193, 1202 (3d Cir. 1978); Sherman v. United States, 462 F.2d 577, 579 (5th Cir. 1972).

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Denying the amendments sought by Defendants would most certainly result in injustice as they

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would be bound to the incorrect factual assertions contained therein. “Factual assertions in

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pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively

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binding on the party who made them.” See Lacelaw, 861 F.2d at 226; Hooper v. Romero, 68

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Cal.Rptr. 749, 753, 262 Cal.App.2d 574, 580 (1968). Thus, Defendants are likely to be

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substantially injured and injustice is likely to result if Defendants are not allowed to amend their

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answers. Likewise, no trial date has been set in this action, discovery is ongoing and, while

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scheduled, depositions of the Defendants have not yet taken place. Plaintiff offers no showing

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that he will suffer prejudice if the amendment is permitted and the Court finds none. First Nat.
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Bank of Circle, 652 F.2d at 887. Finally, allowing the answers to be amended as Defendants

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desire will "facilitate decision on the merits rather than on the pleadings or technicalities." DCD

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Programs, Ltd, 833 F.2d at 186.

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ORDER

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Accordingly, the Court ORDERS:

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1.

The motion to modify the scheduling order and for leave to file an amended

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answer by Defendants O. Delgado, J. Gonzales, and J. Ramirez, filed on April 23, 2015 (Doc.

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35), is GRANTED. The amended answers SHALL be filed no later than May 22, 2015;

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2.

The motion to modify the scheduling order and for leave to file an amended

answer by Defendant H. Ortega, filed on May 6, 2015 (Doc. 38), is GRANTED.

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IT IS SO ORDERED.
Dated:

May 20, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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