Gilman v. Fisher, et al

Filing 445

ORDER signed by Judge Lawrence K. Karlton on 9/6/2012 GRANTING 426 Motion to De-Certify the Class for Claims 1, 3 and 6; DENYING 432 Motion for leave to file a Fifth Amended Complaint. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD M. GILMAN, et al.,
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NO. CIV. S-05-830 LKK/GGH
Plaintiffs,

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v.
O R D E R

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EDMUND G. BROWN, JR., et al.,

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Defendants.
/

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This

is

a

certified

class

action

brought

by

prisoners

sentenced to life terms with the possibility of parole.
Plaintiffs have moved for leave to file an amended complaint

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deleting their remaining Due Process claims.

Defendants oppose

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granting leave to amend on the grounds that the motion is untimely,

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and there is no good cause to grant the motion.

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set forth below, the court will deny plaintiffs’ motion to amend

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their complaint.

For the reasons

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In addition, defendants have moved to de-certify all three

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plaintiff classes – one class for the remaining Due Process claims,

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and one class for each of the ex post facto claims – and for
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summary judgment on all claims.

The court has scheduled those

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motions for hearing on September 14, 2012.

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plaintiffs’ motion to amend the complaint however, plaintiffs

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stated that they did not oppose defendants’ motion to de-certify

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the class certified for Claims 1, 3 and 6 (the remaining Due

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Process Claims).

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that class will be granted in this order.

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I. BACKGROUND

At oral argument on

Accordingly, defendants’ motion to de-certify

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Plaintiffs are three certified classes of “all California

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state prisoners who have been sentenced to a life term with

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possibility of parole.”

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Class (Dkt. No. 340) ¶¶ 1-3.

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relates to Claim 8, an ex post fact challenge), were sentenced “for

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an offense that occurred before November 4, 1998.”

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Members of the second class (which relates to Claim 9, an ex post

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fact challenge), were sentenced “for an offense that occurred

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before November 8, 1988.”

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(which relates to the remaining claims), “have reached eligibility

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for a parole consideration hearing.”

Order Amending Definitions of Certified
Members of the first class (which

Id., ¶ 2.

Id., ¶ 1.

Members of the third class

Id., ¶ 3.

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The Fourth (Corrected) Complaint (Dkt. No. 175) alleges that

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defendants – the Governor and Parole Board officials – have engaged

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in unconstitutional policies and practices that have resulted in

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the state’s failure to set a parole date for prisoners sentenced

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to life terms, despite California law’s presumption that a parole

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date “shall normally” be set for them. Plaintiffs also allege that

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the California Victims’ Bill of Rights Act of 2008 (“Proposition
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9"), as well as Proposition 89, amended the California Constitution

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so as to retroactively increase the plaintiffs’ punishment, by

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increasing their terms of incarceration.

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these practices and laws violate their federal Due Process rights

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(Claims 1, 3 and 6), and subject them to increased penalties in

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violation of the ex post facto clause of the U.S. Constitution

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(Claims 8 and 9).1

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Plaintiffs allege that

On May 3, 2012, this court signed the Status (Pretrial
Scheduling) Conference Order (“Scheduling Order,” Dkt. No. 417).

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In

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defendants timely filed a motion for summary judgment, a motion to

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decertify the class and a request to seal documents (Dkt. Nos. 425,

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426 & 439).

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4, 2012.2 The summary judgment motion is first directed to the

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surviving

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abandoned by plaintiffs, because plaintiffs proffered no evidence

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in support.

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claims, which defendants attack on the law.

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compliance

with

the

scheduling

order,

on

August

7,

2012

Those motions were noticed to be heard on September

Due

Process

claims,

which

defendants

assert

were

The motion is next directed to the ex post facto

On the same day (August 7th), plaintiffs timely filed a motion

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for summary judgment or for preliminary injunction (Dkt. No. 428).

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Plaintiffs’ summary judgment motion makes no mention of the Due

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Process claims. It seeks judgment (or preliminary injunction) only

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This court previously dismissed or granted judgment on the
pleadings for the remaining Due Process claims (Claims 2, 4, 5 and
7), and the Due Process portion of Claim 8 (Dkt. Nos. 217 & 420).
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The Scheduling Order states that Law & Motion must be
completed by September 16, 2012.
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on the ex post facto claims.

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On August 21, 2012, plaintiffs filed a motion seeking leave

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to amend the complaint, together with a request for an order

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shortening the time for hearing the motion. The request to shorten

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the time for hearing the motion was necessary because, pursuant to

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the Local Rules and this court’s calendar, the earliest a motion

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filed August 21, 2012 could otherwise be heard would be October 1,

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2012, after the deadline set by the Scheduling Order.

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II.

ARGUMENTS

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A.

Plaintiffs – Leave To Amend Is Freely Granted

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In their late-filed motion for leave to amend the complaint,

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plaintiffs are quite open about their failure to prosecute the Due

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Process claims that they now seek to delete from their complaint

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(Claims 1, 3 and 6), by amendment.

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not until after they had received defendants’ motion for summary

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judgment on those claims that they decided it was time to drop

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them.

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to delete those claims from the complaint in a timely manner.

Plaintiffs admit that it was

Plaintiffs offer no explanation for why they did not move

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Plaintiffs’ only explanation for why they want to delete the

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claims by amendment – rather than by simply filing a Statement of

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Non-Opposition, by or stipulating to their dismissal – is that they

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wish to avoid the possible preclusive effect of non-opposition or

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voluntary dismissal.

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of the notion that they can avoid the preclusive effect of a

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dismissal or statement of non-opposition by amending the claims out

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However, they offer no authority in support

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of their complaint at this time.3

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Nevertheless, plaintiffs argue that leave to amend should be

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granted now because under Fed. R. Civ. P. 15(a), leave to amend

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should be freely granted when justice so requires, and where

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defendants will suffer no prejudice.

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B.

Defendants - Leave To Amend After A Scheduling Order Is
Granted Only with Good Cause.

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Defendants argue that because the court has already issued a
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Scheduling Order, Fed. R. Civ. P. 16(b) applies, which bars further
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amendment of the pleadings except with “good cause.”

Defendants

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point out that plaintiffs have made no showing of good cause.
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Further, they assert that they will be prejudiced by having
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plaintiffs drop claims without consequences after defendants have
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litigated those claims for years.
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III. LATENESS - SHOULD THE COURT CONSIDER THE MOTION TO AMEND?
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Plaintiffs’ request for an order shortening time asserted that
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if the remaining Due Process claims could not be deleted by
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amendment, their dismissal as part of defendants’ summary judgment
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motion (or by stipulated dismissal) would have a preclusive effect
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on class members who might otherwise wish to proceed as individuals
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on those claims.

Defendants’ opposition to the request quite

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Plaintiffs assert that “[f]or the reasons already
articulated by this Court when it denied Defendants’ motion for
judgment on the pleadings as to the remaining due process claims,
Plaintiffs’ counsel cannot take a position that could potentially
bar future individual plaintiffs from pursuing whatever post-Cooke
due process relief remains.” No such discussion appears in the
referenced order (Dkt. No. 420). If plaintiffs are referring to
a discussion that occurred during oral argument, they should direct
the court’s attention to the transcript, which they have not done.
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reasonably focused on plaintiffs’ tardiness, and did not respond

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to

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stipulated dismissal or summary judgment relative to the Due

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Process claims.

plaintiffs’

concerns

about

the

preclusive

effects

of

a

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The court determined that it would not forever preclude

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members of the plaintiff class from pursuing claims which this

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court had previously found might be meritorious, without further

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briefing on the matter.

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request for an order shortening time.

Accordingly, this court granted the
The motion for leave to

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amend the complaint was accordingly heard on September 4, 2012,

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before the Scheduling Order’s September 16, 2012 deadline. Because

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the motion was scheduled and heard within the time specified by the

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Scheduling Order, the court will consider the motion.

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However, the court notes that plaintiffs took an extraordinary

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risk by proceeding in the manner they did.

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the request for an order shortening time, plaintiffs could not have

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amended their complaint, and their own conduct might well have

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brought down upon them the preclusive consequences they seek to

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avoid (assuming their concerns about preclusion of the Due Process

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claims are well founded).

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Had the court denied

The court cautions all counsel appearing before this court

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that requests for orders shortening time are not routinely granted.

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Accordingly, such requests may not be relied upon to rescue counsel

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or their clients from the consequences of failing to comply with

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a scheduling order or any other order of this court.

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IV.

STANDARDS

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A.

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Rule 15(a) provides that in all cases other than those in

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which the complaint can be amended as a matter of course,4 or where

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the opposing party gives written consent, the complaint may be

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amended only with the court’s leave.

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Moreover, “[T]he court should freely give leave when justice so

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requires.”

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cause” standard of Rule 16(b) applies, not the more lenient

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Which Standard Applies – Rule 15(a)’s or Rule 16(b)’s?

Id.

Fed. R. Civ. P. 15(a)(2).

Defendant argues that the more stringent “good

standard of Rule 15(a).

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Defendants are correct, although not for the reasons they

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argue. Defendants argue that in this circuit, “a request for leave

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to amend after the entry of a Rule 16 Scheduling Order is governed

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primarily by Rule 16(b),” which permits amendment only upon a

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showing of “good cause,” citing Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604 (9th Cir. 1992). In fact, the Ninth Circuit has

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expressly rejected this interpretation of Johnson:

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Federal Rule of Civil Procedure 16 has no effect on the
operation of Federal Rule of Civil Procedure 15(a)
principles in this case. In Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604 (9th Cir.1992), we held
that Rule 15(a) did not apply, not because Rule 15 is
trumped by Rule 16 once the district court filed a
pretrial scheduling order, but rather because the party
in Johnson had failed to file his motion to join
additional parties within the period of time set in the

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A party may amend the complaint once “as a matter of
course,” if it does so within 21 days of filing the initial
complaint, or within 21 days of being served with certain Rule 12
motions.
See Fed. R. Civ. P. 15(a)(1).
This Rule is not
applicable to this motion, filed years after the initial complaint
was filed.
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district court's scheduling order. Id. at 607-08.

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AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 952

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(9th Cir. 2006).

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Thus, the Ninth Circuit rule is that Rule 16(b)’s “good cause”

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standard applies only after the court “ha[s] filed a pretrial

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scheduling order that established a timetable for amending the

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pleadings, and the deadline ha[s] expired before [the moving

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parties] moved to amend.”

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1271, 1294 (9th Cir. 2000), cert. denied, 533 U.S. 950 (2001),

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Coleman v. Quaker Oats Co., 232 F.3d

citing Johnson, 975 F.2d at 607-09.5
However, defendants are correct that Rule 16(b) applies here.

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The reason is that according to the Scheduling Order, the deadline

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for amending the complaint expired on May 3, 2012, the date of the

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Scheduling Order itself:

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No further joinder of parties or amendments to pleadings
is permitted except with leave of court, good cause
having been shown. See Johnson v. Mammoth Recreations,
Inc., 975 F.3d 604 (9th Cir. 1992).

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Since plaintiffs’ motion to amend was filed and heard after May 3,

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2012, the deadline set by the Scheduling Order, it is governed by

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the “good cause” standard of Rule 16(b).

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B.

Rule 16(b).

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Under Rule 16(b), the court may grant the motion to amend only

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Accord, Ziptronix, Inc. v. Omnivision Technologies, Inc.,
2012 WL 3155554 at *1 (N.D. Cal. 2012) (Armstrong, J.) (“under Rule
16(b), once the deadline for amending pleadings established in a
court's pretrial scheduling order passes, a party may amend its
pleadings ‘only for good cause and with the judge's consent’”).
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if plaintiffs show “good cause” for it.

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reasons for granting leave to amend.6

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avoid

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suffering a summary judgment on (or dismissal of) the remaining Due

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Process claims.

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will, in this order, decertify the remaining Due Process classes.

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With no class certification, it does not appear that the former

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class

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individually.

the

preclusive

effect

on

Plaintiffs offer two

First, plaintiffs wish to

individual

class

members

of

However, the court has already determined that it

members

will

be

precluded

from

pursuing

their

claims

Accordingly, this concern of plaintiffs is moot.

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Second, plaintiffs assert that deleting the remaining Due

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Process claims would “promote the more efficient adjudication of

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the case by narrowing the focus of the parties and the court on the

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central areas of dispute.”

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accomplished this goal by conceding that they have abandoned the

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remaining Due Process claims, and by not opposing defendants’

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motion for summary judgment on those claims.

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plaintiffs

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consideration. Absent some extraordinary and unexpected change in

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circumstances, defendants’ motion for summary judgment on those

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claims will likely be granted without further effort on anyone’s

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part.

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have

Meanwhile,

eliminated

defendants

However, plaintiffs have already

the

have

Due

made

By their conduct,

Process

a

claims

convincing

case

from

of

plaintiffs’ “lack of diligence,” “careless[ness]” in failing to

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The court notes that plaintiffs offered these explanations
under the mistaken belief that their motion would be governed by
the lenient standards of Rule 15(a).
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move to amend the complaint earlier, unjustifiable failure to

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prosecute their case, and that plaintiffs simply “sat on their

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hands” all this time.

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The court concludes that plaintiffs have shown no “good cause”

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for permitting amendment of their complaint.

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IV.

CONCLUSION

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For the reasons set forth above

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1.

Defendants’ unopposed motion to de-certify the class for

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Claims 1, 3 and 6 – “all California state prisoners who have been

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sentenced to a life term with possibility of parole and have

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reached eligibility for parole consideration hearing” – is hereby

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GRANTED;7 and

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2.

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Plaintiffs’ motion to amend the complaint (Dkt. No. 432),

is hereby DENIED.

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IT IS SO ORDERED.

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DATED:

September 6, 2012.

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In granting this unopposed motion, the court does not
address or adopt any of defendants’ legal arguments for decertifying the class.
The remainder of defendants’ decertification motion – to decertify the classes for Claims 8 and
9 – is currently scheduled for hearing on September 14, 2012.
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