Kemper v. Folsom, LLC et al

Filing 43

ORDER signed by Judge Morrison C. England, Jr on 02/10/09 DENYING 36 Motion to Amend the Complaint. (Streeter, J)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Defendants. 15 ----oo0oo---16 17 18 19 20 21 22 23 24 25 26 27 28 Because oral argument will not be of material assistance, the Court ordered this matter submitted on the briefing. E.D. Cal. Local Rule 78-230(h). 1
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

EDWARD L. KEMPER, Plaintiff, v. FAIRMONT FOLSOM, LLC, and CWS APARTMENT HOMES, LLC,

No. 2:07-cv-00647-MCE-DAD

MEMORANDUM AND ORDER

Through this action, Plaintiff seeks relief from injuries allegedly suffered as a result of Defendants' violations of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., the Fair Housing Act, 42 U.S.C. § 3601 et seq., the California Disabled Persons Act, Cal. Civ. Code § 54, et seq., and the Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq. Presently before the Court is Plaintiff's Motion to Amend the Complaint and the Pretrial Scheduling Order ("PTSO").1 ///

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Generally, the Court is required to enter a pretrial scheduling order within 120 days of the filing of the complaint. Fed. R. Civ. P. 16(b). The scheduling order "controls the

subsequent course of the action" unless modified by the Court. Fed. R. Civ. P. 16(d). Orders entered before the final pretrial

conference may be modified upon a showing of "good cause," Fed. R. Civ. P. 16(b), but orders "following a final pretrial conference shall be modified only to prevent manifest injustice." Fed. R. Civ. P. 16(e); see also Johnson v. Mammoth Recreations, 975 F.2d 604, 608 (9th Cir. 1992). Rule 16(b)'s "good cause" standard primarily considers the diligence of the party seeking the amendment. Id. at 609. "The

district court may modify the pretrial schedule `if it cannot reasonably be met despite the diligence of the party seeking the extension.'" Id., quoting Fed. R. Civ. P. 16 advisory "Moreover, carelessness is

committee's notes (1983 amendment).

not compatible with a finding of diligence and offers no reason for a grant of relief." Id. "Although the existence or degree

of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. that party was not diligent, the inquiry should end." Id. If

This Court issued its PTSO on October 15, 2007, setting trial for Monday, April 13, 2009. All dispositive Motions were

to be heard no later than October 13, 2008, and the final pretrial conference is scheduled to take place on March 13, 2009. /// /// 2

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Nevertheless, Plaintiff now seeks to amend his Complaint, adding a retaliation claim. Supporting his request to amend,

Plaintiff alleges that, after his lease expired at the end of October, 2008, Defendants increased his rental rate without providing him notice or an explanation. Additionally, Defendants

have allegedly ignored Plaintiff's request to renew his lease. These facts are simply insufficient to rise to the level of good cause required to justify amendment of the Complaint and, by necessity, the PTSO. DENIED. IT IS SO ORDERED. Dated: February 10, 2009 Accordingly, Plaintiff's Motion to Amend is

_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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