Ross v. Bar None Enterprises, Inc.

Filing 19

ORDER signed by Judge Kimberly J. Mueller on 10/23/2013 GRANTING 16 Motion to Modify the Scheduling Order/Motion for Leave to file a Second Amended Complaint; DEEMING the Second Amended Complaint filed 8/5/2013 as filed as of the date of this order. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT ROSS,

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Plaintiff,

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No. 2:13-cv-00234-KJM-KJN

v.

ORDER

BAR NONE ENTERPRISES INC.,
a California corporation,
Defendant.

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This matter is before the court on plaintiff Robert Ross’s motion to modify the

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scheduling order and for leave to file a second amended complaint. (ECF 16.) The court decided

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this matter on the papers. As explained below, the court GRANTS plaintiff’s motion.

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I.

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INTRODUCTION AND PROCEDURAL BACKGROUND
This case arises out of plaintiff’s alleged wage claims against defendant, his

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former employer. Plaintiff filed his original complaint on February 6, 2013 (ECF 1) and his first

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amended complaint on April 2, 2013 (ECF 6). Plaintiff alleges eight causes of action in the first

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amended complaint, including violations of overtime compensation laws under the Fair Labor

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Standards Act (“FLSA”) and the California Labor Code (“Labor Code”); violations of Labor

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Code sections 226, 512, 226.7 and 203; violations of California Business and

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Professions Code section 17200; and recovery of penalties under the Labor Code Private

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Attorneys General Act of 2004, Labor Code section 2699. (ECF 6 at 3-9.)
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On April 24, 2013, defendant Bar None Enterprises, Inc., filed an answer to

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plaintiff’s First Amended Complaint. (ECF 8.) On June 20, 2013, the court held an initial

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scheduling conference, and on July 1, 2013, the court issued a scheduling order. (ECF 11.) The

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court’s scheduling order provides: “No further joinder of parties or amendments to pleadings is

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permitted without leave of court, good cause having been shown.” (Id. at 1.) The scheduling

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order further provides: “The parties are reminded that pursuant to Rule 16(b) of the Federal Rules

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of Civil Procedure, the Status (Pretrial Scheduling) Order shall not be modified except by leave of

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court upon a showing of good cause.” (Id. at 9.)

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Despite the scheduling order’s express mandate, the parties filed a stipulation for

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filing a second amended complaint on August 5, 2013 (ECF 13), and plaintiff filed a Second

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Amended Complaint on the same day (ECF 14). However, because these filings violated the

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scheduling order, the court issued a minute order striking the stipulation and the Second Amended

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Complaint on August 6, 2013. (Dkt. No. 15.) Consequently, plaintiff brings this unopposed

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motion seeking to modify the court’s scheduling order and seeking leave to file a second amended

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complaint. (ECF 16.) The Second Amended Complaint is captioned as a class action complaint,

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whereas, the First Amended Complaint was filed on plaintiff’s behalf only. (Id.)

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II.

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STANDARD
A party seeking leave to amend pleadings after the deadline specified in the

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scheduling order must first satisfy Federal Rule of Civil Procedure 16(b)’s “good cause” standard.

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608–09 (9th Cir. 1992). Rule 16(b)(4)

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states that a “schedule may be modified only for good cause and with the judge’s consent.” This

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good cause evaluation “is not coextensive with an inquiry into the propriety of the amendment

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under . . . Rule 15.” Johnson, 975 F.2d at 609. Distinct from Rule 15(a)’s liberal amendment

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policy, Rule 16(b)’s good cause standard focuses primarily on the diligence of the moving party,

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id., and that party’s reasons for seeking modification, C.F. ex rel. Farnan v. Capistrano Unified

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Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011).

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If good cause exists, the party next must satisfy Rule 15(a). Cf. Johnson, 975 F.2d
at 608 (citing Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 1987), approvingly for its
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explication of this order of operations). Federal Rule of Civil Procedure 15(a)(2) states “[t]he

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court should freely give leave [to amend its pleading] when justice so requires” and the Ninth

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Circuit has “stressed Rule 15’s policy of favoring amendments.” Ascon Props., Inc. v. Mobil Oil

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Co., 866 F.2d 1149, 1160 (9th Cir. 1989). “In exercising its discretion [regarding granting or

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denying leave to amend] ‘a court must be guided by the underlying purpose of Rule 15 — to

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facilitate decision on the merits rather than on the pleadings or technicalities.’” DCD Programs,

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Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977,

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979 (9th Cir. 1981)). However, “the liberality in granting leave to amend is subject to several

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limitations. Leave need not be granted where the amendment of the complaint would cause the

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opposing party (1) undue prejudice, (2) is sought in bad faith, (3) constitutes an exercise in

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futility, or (4) creates undue delay.” Ascon Props., 866 F.2d at 1160 (internal citations omitted).

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III.

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ANALYSIS
Plaintiff argues he satisfies the “good cause” requirement for modifying the court’s

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scheduling order: while at the time of the initial scheduling conference on June 20, 2013, “he

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informed the court that the case might be a candidate for class action status,” plaintiff then did not

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have “the benefit of further contact by” defendant’s “similarly situated former employees.” (ECF

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16 at 7.) Plaintiff learned about defendant’s other former employees’ potential claims only in the

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middle of July 2013, when plaintiff’s counsel met with defendant’s counsel to discuss the

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possibility of amending the First Amended Complaint. (Certificate of Counsel ¶¶ 2-3, ECF 16.)

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As indicated above, defendant does not oppose plaintiff’s motion.

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The court finds plaintiff has demonstrated “good cause” to amend the scheduling

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order. After counsel met in July, plaintiff drafted a proposed Second Amended Complaint and

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sent it to defendant’s counsel for approval on August 2, 2013. (Id.) On the same day,

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defendant’s counsel signed a stipulation for filing the proposed Second Amended Complaint, and

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on August 5, 2013, plaintiff filed the stipulation and the Second Amended Complaint with the

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court. (Id.) Because plaintiff acted diligently in seeking a stipulation shortly after he learned of

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the potential class members and in seeking leave to amend this court’s scheduling order, the court

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finds plaintiff has satisfied the “good cause” requirement under Rule 16(b).
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The court also finds plaintiff has carried his burden under Rule 15. Granting

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plaintiff leave to file the Second Amended Complaint will not unfairly prejudice defendant. It is

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reasonable to assume that if the filing of the Second Amended Complaint were prejudicial,

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defendant would not have stipulated to it or defendant would have filed an opposition. As to the

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bad faith factor, the court finds, for the same reasons set forth in the Rule 16(b) analysis above,

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that plaintiff did not act in bad faith in bringing the instant motion. Regarding futility, an

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amendment is futile where it “appears beyond doubt that the plaintiff’s proposed amended

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complaint would not remedy the deficiencies in the previous complaints.” Tseng v. Nordstrom,

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Inc., No. 11-08471, 2012 WL 3019949, at *4 (C.D. Cal. July 23, 2012) (quoting Adam v. State of

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Hawaii, 235 F.3d 1160, 1164 (9th Cir. 2001), overruled on other grounds by Green v. City of

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Tucson, 255 F.3d 1086, 1090 (9th Cir. 2001)). Here, plaintiff seeks to amend the First Amended

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Complaint to file a class action complaint. As such, the proposed Second Amended Complaint

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addresses Rule 23 requirements that are absent from the First Amended Complaint. The court

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cannot find the proposed Second Amended Complaint to be futile under the circumstances.

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Finally, as to the undue delay factor, the court finds, for the same reasons set forth in the Rule

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16(b) analysis above, that plaintiff’s actions have not caused undue delay in this case.

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IV.

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CONCLUSION
For the foregoing reasons, plaintiff’s motion to modify the scheduling order is

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GRANTED and plaintiff is GRANTED leave to file his second amended complaint. The Second

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Amended Complaint filed on August 5, 2013 is deemed filed as of the date of this order.

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IT IS SO ORDERED.
Dated: October 23, 2013.

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UNITED STATES DISTRICT JUDGE

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