Fernandes et al v. TW Telecom Holdings Inc.

Filing 30

ORDER signed by Judge Garland E. Burrell, Jr on 4/22/15 DENYING 22 Motion to Amend the Complaint. However, an unrelated conflice has developed concerning the trial date. Therefore the 20 scheduling order is amended sua sponte, and trial shall commence at 9:00 a.m. on 10/20/15. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANDREW FERNANDES,

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Plaintiff,

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No. 2:13-cv-2221-GEB-CKD

v.

ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO AMEND THE
SCHEDULING ORDER AND SUA SPONTE
AMENDMENT OF THE TRIAL
COMMENCEMENT DATE

TW TELECOM HOLDINGS, INC.,

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Defendant.

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Plaintiff filed a motion on February 27, 2015, in which

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he seeks de facto amendment of most dates in the scheduling order

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issued on February 26, 2014. (Status (Pretrial Scheduling) Order,

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(“Scheduling Order,”) ECF No. 20.) Specifically, Plaintiff seeks

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leave to file an amended complaint that would add four claims

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against

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discovery completion date so that he could have six additional

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months to conduct discovery on both his existing claims and the

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four proposed claims, and to continue the scheduled September 15,

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2015

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provisions in the scheduling order concern these requests: “no

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further . . . amendments to pleadings is permitted, except with

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leave of Court for good cause shown,” “all discovery shall be

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completed by February 3, 2015,” and “[t]rial shall commence . . .

Defendant,

trial

to

re-open

commencement

date

the

for

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expired

six

February

months.

The

3,

2015

following

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on September 15, 2015.” (Scheduling Order 2:19-20; 3:5; 5:10-11.)

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Plaintiff‟s request would also necessitate amendment of the now-

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past

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scheduled June 15, 2015 final pretrial conference date. Plaintiff

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argues his motion should be granted, stating:

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13,

2015

last

hearing

date

for

motions

and

the

After his termination, Defendant . . .
inform[ed him] that he was free to apply for
jobs within the company and that he would be
seriously considered for any jobs for which
he was qualified. And yet, unbeknownst to
Plaintiff, . . . his personnel file contained
a single innocuous sheet, a “Separation
Checklist
for
Termination”
(“termination
checklist”).
The
termination
checklist,
baldly contradicts all communications to
Plaintiff, advising internal hiring agents
that Plaintiff is not eligible for rehire due
to
“unprofessional
questionable
conduct
during term”

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. . . .

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This Court has advised that, “No further
service, joinder of parties, or amendments to
pleadings is permitted, except with leave of
Court for good cause shown.” (ECF Document
No. 20, 2:19-21.) Good cause exists here for
two distinct reasons. First, Plaintiff has
uncovered facts which, if proven, support
four additional causes of action . . .
Second,
Defendant‟s
persons
most
knowledgeable
about
key
topics
of
the
existing
case
[(“30(b)(6)
witnesses”)]—
including
a
failure
to
acknowledge
Plaintiff‟s complaint of retaliation, a bonus
plan paid to Plaintiff, the nature and
existence of contracts with the government,
and
the
genesis
of
the
“termination
checklist”—were unable to articulate details
about these topics. Thus, good cause exists
to extend discovery and trial by 6 months.

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April

(Mot. 1:18-26, 17:17-26, ECF No. 22-1.)

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Although Plaintiff argues in a conclusory manner that

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“good cause” exists for the scheduling order amendments he seeks,

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the

authority

under

which

he
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actually

argues

his

pleading

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amendment motion concerns the liberal amendment pleading standard

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prescribed

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However,

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scheduling order [under Rule 16(b)] . . . that rule‟s [good

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cause] standard[] control[s]” and the movant seeking to amend the

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no further amendment provision in the scheduling order must first

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demonstrate

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before addressing whether a pleading amendment is proper under

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Rule 15. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-

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“[o]nce

“good

the

Rule

of

cause”

under

Procedure

court

district

Civil

ha[s]

Rule

16(b)

(“Rule”)

filed

for

a

that

.

15.
.

.

amendment

“A court's evaluation of good cause is not
coextensive
with
an
inquiry
into
the
propriety of the amendment under . . . Rule
15.” Unlike Rule 15(a)'s liberal amendment
policy which focuses on the bad faith of the
party seeking to interpose an amendment and
the prejudice to the opposing party, Rule
16(b)'s
“good
cause”
standard
primarily
considers the diligence of the party seeking
the amendment. The district court may modify
the
pretrial
schedule
“if
it
cannot
reasonably be met despite the diligence of
the party seeking the extension.” Moreover,
carelessness is not compatible with a finding
of diligence and offers no reason for a grant
of relief. 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. If that party was not diligent,
the inquiry should end.

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Federal

08 (9th Cir. 1992).

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in

Id. at 609 (citations omitted)(emphasis added).
A.

Leave to File an Amended Complaint and Corresponding

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Discovery

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Plaintiff argues he should be granted leave to add four

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claims to his complaint and to conduct discovery on those claims

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since he “uncovered facts . . . support[ing] four additional
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[claims].” (Mot. 17:19-24.) Specifically, Plaintiff contends that

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after

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“advis[ed] internal agents [through the “termination checklist”]

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that

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„unprofessional questionable conduct during [his] term.‟” (Mot.

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1:22-26.)

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additional claims since “[a]t the time [he] was terminated, [an

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employee of Defendant] advised [Plaintiff] that [he] could apply

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for any position for which [he] was qualified.” (Fernandes Decl.

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filing

the

Plaintiff

Complaint,

was

Plaintiff

not

he

discovered

eligible

declares

this

for

that

rehire

information

Defendant

[due]

supports

to

his

¶ 12, ECF No. 22-3.)

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Defendant responds that Plaintiff has not demonstrated

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the “good cause” Rule 16 requires since the termination checklist

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“upon which [Plaintiff] bases his [m]otion . . . [was served on

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Plaintiff in discovery] on March 24, 2014; and [Plaintiff] did

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nothing for six months [after receipt of that information] to

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follow up on that purportedly key piece of evidence.” (Opp‟n 1:7-

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8, ECF No. 24.)

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Plaintiff does not dispute this service date. Instead,

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he argues that to plead his additional claims, he needed to

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obtain

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questionable conduct” statement in the termination checklist and

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that

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30(b)(6)

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generally Mot. 18:7-19:5; Boucher Decl. ¶¶ 2-4, 18, ECF No. 22-

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2.)

he

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further

sought

information

such

depositions,

Plaintiff‟s
about

further
which

counsel

possible

about

the

information
occurred

declares

dates

that

through

Defendant‟s

January

2015.

he

Defendant‟s

“inquired
.

.

.

(See

with

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Defendant

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30(b)(6) . . . depositions” “in early October[2014],” and that
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for

in

“unprofessional,

Rule

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“[o]n November 19, 2014” he “set the [dates for the] deposition

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of Defendant‟s [30(b)(6) witnesses].” (Boucher Decl. ¶¶ 8, 11.)

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Plaintiff‟s

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initially noticed for “January 14, 2015,” but after communication

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with

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ultimately deposed the witnesses on the following dates: January

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8, 2015, January 20, 2015, January 27, 2015, and January 30,

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2015. (Id. ¶¶ 11, 16-18.)

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counsel

Defendant‟s

Plaintiff

further

counsel,

has

declares

the

not

those

dates

cogently

were

depositions

changed

explained

why

were

and

he

he

needed

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Defendant‟s 30(b)(6) deposition testimony, in addition to the

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information he received in the termination checklist, to plead

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his additional claims. Further, while unexpected information “can

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constitute good cause [for amending a scheduling order], that

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good

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Material Handling, U.S.A., Inc., No. 10-3755, 2012 WL 1393074, at

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*6

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[s]cheduling

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bec[omes] apparent [to Plaintiff] that [he or she] could not

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comply with the order.” Hardy v. Cnty. of El Dorado, No. 2-07-CV-

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0799 JAM EFB, 2008 WL 3876329, at *1 (E.D. Cal. Aug. 20, 2008)

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(denying plaintiff‟s request for amendment since plaintiff had

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not “adequately explain[ed] why an extension of time was not

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sought earlier.”). Plaintiff has not “adequately explained why

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[he]

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checklist]

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Storage, Inc. v. Behl, 943 F. Supp. 1230, 1233 (E.D. Cal. May 3,

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1996). Even assuming that Plaintiff needed Defendant‟s 30(b)(6)

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deposition testimony to state the additional claims, he still

cause

does

(D.N.J.

waited

Apr.

not

23,

[o]rder

[eleven]
before

exist

indefinitely.”

2012).

[should

months

filing

the

Rather,
be

after

receiving

5

to

v.

“amend[ment

diligently

motion

Fermin

sought]

the

amend.”

Toyota

of]
once

the
it

[termination
Eckert

Cold

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fails to demonstrate diligence in seeking to amend the scheduling

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order since by his own account, more than seven months passed

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after he was served the termination checklist before he contacted

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Defendant about scheduling the depositions. The several months

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“gap [between Plaintiff‟s receipt of the new information and his

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filing of the motion to amended the scheduling order] shows a

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lack of diligence on his part, which cunctation is the antithesis

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of the finding of good cause contemplated under Rule 16 . . .

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Carbajal v. St. Anthony Cent. Hosp., No. 12-cv-02257, 2015 WL

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1499864, at *2 n.4 (D. Colo. Mar. 27, 2015). Permitting Plaintiff

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to now upend the scheduling order several months after Plaintiff

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clearly became aware of the facts that he could have used as a

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basis for amendment much earlier in the proceeding, would permit

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“the sort of disruption that Rule 16(b) was designed to prevent.”

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Eckert Cold Storage, Inc., 943 F. Supp. at 1233.

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Since Plaintiff has not shown “good cause” to amend the

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“no

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provisions of the scheduling order, Plaintiff‟s de facto request

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to amend these portions of the scheduling order is denied.

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further

B.

amendment”

and

“discovery

completion

deadline”

Discovery for Plaintiff’s Existing Claims and Trial

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Date

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Plaintiff also argues discovery should be re-opened for

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his existing claims and the trial commencement date deferred six

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months because Defendant‟s 30(b)(6) witnesses “were unable to

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articulate

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“Plaintiff‟s

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Plaintiff,

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government,

details

about

[claim]
the
and

of

nature
the

.

.

.

[relevant]

retaliation,
and

genesis

existence
of
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the

a
of

topics,”

bonus

plan

contracts

„termination

including
paid
with

to
the

checklist.‟”

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(Mot. 17:22-25.)

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Defendant counters Plaintiff has not shown “good cause”

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under Rule 16 for the referenced amendments since he “did not

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conduct any discovery in the months of April, May, June, July,

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August, or September 2014—the precise six-month amount of time

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for

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(Opp‟n 12:28-13:2.)

which

[he]

now

seeks

[to

conduct

additional

discovery].”

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Plaintiff does not dispute that he failed to conduct

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any discovery from April through and including September 2014,

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and instead replies “[b]oth parties did little in discovery from

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March to October 2014.” (Reply 6:9-10, ECF No. 25). Whether or

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not

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pertinent to the issue whether Plaintiff could have “reasonably”

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completed

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Johnson,

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explanation be provided concerning why the discovery could not be

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completed “despite [his] . . . diligence.”)

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another

party

discovery
975

F.3d

conducted

within
at

609

discovery

the

has

prescribed

(requiring

not

been

discovery

that

a

shown

period.

satisfactory

Further, the scheduling order that Plaintiff referenced
in his motion states in relevant part:
All discovery shall be completed by February
3, 2015. “Completed” means all discovery
shall be conducted so that any dispute
relative
to
discovery
shall
have
been
resolved by appropriate orders, if necessary,
and, where discovery has been ordered, the
order has been complied with on or before the
“completion” date.

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(Scheduling Order 3:5-10.) Therefore, it is pellucid that in the

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exercise of diligence Rule 16 requires, Plaintiff should have

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noticed Defendant‟s 30(b)(6) depositions early enough so that any

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dispute concerning the objective of that discovery was “resolved”
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and

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discovery was “complied with on or before” February 3, 2015.

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Instead,

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discovery period to depose Defendant‟s 30(b)(6) witnesses and

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filed the motion sub judice twenty-four days after the discovery

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completion date. Since Plaintiff has not justified his admitted

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delay by explaining why the discovery completion date could not

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have “reasonably be[en] met despite [his] diligence,” Plaintiff‟s

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motion to re-open discovery and delay the trial date is denied.

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any

discovery

Plaintiff

order

waited

concerning

until

the

the

last

objective

few

weeks

of

of

that

the

Johnson, 975 F.3d at 609.
C.

Sua Sponte Amendment to the Trial Date

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However, an unrelated conflict has developed concerning

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the trial date. Therefore the scheduling order is amended sua

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sponte, and trial shall commence at 9:00 a.m. on October 20,

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2015.

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Dated:

April 22, 2015

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