Advanced Building & Fabrication, Inc., et al. v. California Highway Patrol, et al.

Filing 180

MEMORANDUM and ORDER signed by District Judge Morrison C. England, Jr. on 11/19/2019 DENYING 165 Motion for an Order to Show Cause and 168 Motion to Amend the Complaint and Reopen Discovery. The Clerk of the Court shall re-terminate counsel associated with the law firm Nossaman, Guthner, Knox & Elliott, LLP. Not later than 30 days following the date this Order is electronically filed, the parties are DIRECTED to file a Joint Notice of Trial Readiness. (Huang, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ADVANCED BUILDING &
FABRICATION, INC., et al.,
Plaintiffs,

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MEMORANDUM AND ORDER
v.

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No. 2:13-cv-02380-MCE-CKD

CALIFORNIA HIGHWAY PATROL,
et al.,

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Defendants.

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By way of this action, Plaintiffs Advanced Building & Fabrication, Inc., and Robert

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Honan (collectively “Plaintiffs”) seek to recover from Defendants California Highway

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Patrol (“CHP”), CHP Officer John Wilson, and Board of Equalization employee Curtis

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Ayers (collectively “Defendants”) for injuries arising out of the search of Plaintiffs’

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premises and Honan’s arrest.1 In July 2017, the Court denied Defendants’ Motions for

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Summary Judgment, among other motions, after which Defendants appealed. ECF

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Nos. 140-141, 148. The final mandate for Defendants’ various appeals was handed

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down in July of this year. In the meantime, Plaintiffs’ counsel filed a notice of withdrawal

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of counsel indicating that new counsel had been substituted in at the appellate level and

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would now be representing Plaintiffs. ECF No. 153. Presently before the Court are

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Plaintiff has since reached a settlement with Mr. Ayers, who is no longer a party to this action.

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Plaintiffs’ Motion for an Order to Show Cause as to why Plaintiffs’ former counsel

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(hereafter “Former Counsel”) should not be sanctioned (ECF No. 165) for withdrawing in

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this Court without Plaintiffs’ approval and Plaintiffs’ Motion to Amend the Complaint and

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to Reopen Discovery (ECF No. 168). For the following reasons, both Motions are

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DENIED.2

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ANALYSIS

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A.

Request for Sanctions

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By way of Plaintiffs’ first Motion, they seek an order: (1) imposing monetary

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sanctions against Former Counsel for filing a purportedly premature notice of substitution

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of counsel; (2) reinstating Former Counsel to represent Plaintiffs here; and (3) requiring

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Former Counsel to turn over to Plaintiffs all relevant client files. The gist of Plaintiffs’

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argument is that they intended to substitute new counsel in for appellate purposes only

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and that their Former Counsel was supposed to continue representing Plaintiffs for trial

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purposes on remand.

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Based on the record in its entirety, though, it appears that Plaintiffs intended to

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relieve Former Counsel of their obligations with regard to this case as a whole. For

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example, Plaintiffs requested the relinquishment of the entire trial file. If Plaintiffs

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intended to retain Former Counsel for any purpose, they would have needed to retain

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some files. Moreover, the substitution filed both before the Ninth Circuit and here,

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indicated that the substitution was intended for the “above-captioned” case, so it was

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reasonable for Former Counsel to believe he had been permanently discharged by his

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client.

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Regardless, given the fractured relationship between the parties in this case, and
Plaintiffs’ agreement with appellate counsel to represent them here until substitute

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Having determined that oral argument would not be of material assistance, the Court ordered this
matter submitted on the briefs in accordance with E.D. Local Rule 230(g).

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counsel may be obtained, reinstating Former Counsel makes no practical sense. Nor

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did Former Counsel’s withdrawal violate the local rules since Plaintiffs were not left in pro

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per by the withdrawal.

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Finally, the Court is not convinced that counsel have properly attempted to meet

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and confer with regard to the transfer of any remaining files in the possession of Former

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Counsel. Accordingly, there is no need for a court order directing the production of

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documents when Former Counsel has already indicated a willingness to provide those

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files to Plaintiffs’ new counsel. There is no dispute to resolve with respect to the files.

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In sum, having considered the entire record, including the statements of both

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parties, the Court declines to impose sanctions. The motion for an order to show cause

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is thus DENIED. If the parties are unable to informally resolve the transfer of any

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remaining files, any such dispute may be raised before the assigned magistrate judge in

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the first instance.

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B.

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Generally, a motion to amend is subject to Rule 15(a) of the Federal Rules of Civil

Motion to Amend

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Procedure,3 which provides that “[t]he court should freely give leave [to amend] when

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justice so requires.” Fed. R. Civ. P. 15(a)(2). However, “[o]nce the district court ha[s]

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filed a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16[,] which

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establishe[s] a timetable for amending pleadings[,] that rule’s standards control[].”

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992); see In re

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W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013).

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Rule 16(b) requires a party seeking leave to amend to demonstrate “good cause.”

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Fed. R. Civ. P. 16(b). “Rule 16(b)’s ‘good cause’ standard primarily considers the

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diligence of the party seeking amendment.” Johnson, 975 F.2d at 609. “If that party was

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not diligent, the inquiry should end.” Id. Although “the focus of the inquiry is upon the

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All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
otherwise noted.

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moving party’s reasons for seeking modification,” a court may make its determination by

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noting the prejudice to the other parties. Id.

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If good cause is found, the court must then evaluate the request to amend in light

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of Rule 15(a)’s liberal standard. Id. at 608. Leave to amend should be granted unless

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amendment: (1) would cause prejudice to the opposing party, (2) is sought in bad faith,

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(3) creates undue delay, (4) or is futile. Chudacoff v. Univ. Med. Ctr. of S. Nev.,

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649 F.3d 1143, 1153 (9th Cir. 2011) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

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“Because Rule 16(b)’s ‘good cause’ inquiry essentially incorporates the first three

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factors, if a court finds that good cause exists, it should then deny a motion for leave to

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amend only if such amendment would be futile.” Baisa v. Indymac Fed. Reserve,

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No. 2:09-CV-01464-WBS-JFM, 2010 WL 2348736, at *1 (E.D. Cal. June 7, 2010).

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Not only has a scheduling order issued here, such that Plaintiffs must confront

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Rule 16(b)’s good cause threshold, but discovery is already closed and dispositive

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motion deadlines have passed. In light of the posture of this case, Plaintiffs have not

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remotely demonstrated that they were diligent in seeking the requested amendments.

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This action was initiated in 2013 based on events that occurred in 2012, but Plaintiffs

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now contend amendment is necessary to add a host of new Defendants that have been

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known to the parties for years. Regardless of whether Plaintiffs believe Former Counsel

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should have joined all of these additional individuals, they have had years to attempt to

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ensure such joinder was effectuated. Given the lack of evidence that Plaintiffs acted

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diligently, they cannot show good cause under Rule 16(b), and their instant Motion is

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DENIED.

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CONCLUSION

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Plaintiffs’ Motion for an Order to Show Cause (ECF No. 165) and Motion to

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Amend the Complaint and Reopen Discovery (ECF No. 168) are DENIED. The Clerk of

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the Court shall re-terminate counsel associated with the law firm Nossaman, Guthner,

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Knox & Elliott, LLP.

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Not later than thirty (30) days following the date this Order is electronically filed,

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the parties are directed to file a Joint Notice of Trial Readiness the appropriateness of

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special procedures, whether this case is related to any other case(s) on file in the

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Eastern District of California, the prospect for settlement, their estimated trial length, any

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request for a jury, and their availability for trial. The parties' Notice of Trial Readiness

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Statement shall also estimate how many court days each party will require to present its

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case, including opening statements and closing arguments. Plaintiffs’ estimate shall also

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include the time necessary for jury selection, and Defendants’ estimate shall include the

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time necessary to finalize jury instructions and instruct the jury.

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This Court is in session for jury selection, opening statements, presentation of

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evidence, closing arguments, and instruction of the jury Monday through Wednesday,

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only. Jury deliberations only are Monday through Friday if necessary. During trial days,

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the Court adheres to the following schedule: presentation of evidence 9:00 a.m.-

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4:30 p.m. with a twenty (20) minute morning and afternoon recess (10:30 a.m. and 3:00

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p.m.) and an hour and a half lunch recess (12:00-1:30 p.m.).

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After review of the parties' Joint Notice of Trial Readiness, the Court will issue an
order that sets forth dates for a final pretrial conference and trial.
IT IS SO ORDERED.
DATED: November 19, 2019

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

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