KFD Enterprises Inc v. City of Eureka

Filing 456

ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE FIFTH AMENDED COMPLAINT. Denying 431 Motion for Leave to File Fifth Amended Complaint. Signed by Judge Maxine M. Chesney. (mmclc2, COURT STAFF) (Filed on 4/22/2011)

1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE NORTHERN DISTRICT OF CALIFORNIA

For the Northern District of California

United States District Court

10
11
12
13
14
15

No. C-08-4571 MMC

KFD ENTERPRISES, INC., a California
Corporation dba Norman’s Dry Cleaners,

ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE FIFTH
AMENDED COMPLAINT

Plaintiff,
v.
CITY OF EUREKA,

16

Defendant

17

/

18

Before the Court is plaintiff KFD Enterprises Inc’s (“KFD”) “Motion for Leave to File

19

Fifth Amended Complaint,” filed February 18, 2011.1 Defendants the City of Eureka (“the

20

City”), Environmental Resolutions Inc. (“ERI”), Firbimatic SpA (“Firbimatic”), and R.R. Street

21

& Co., Inc. (“RR Street”) have filed opposition, to which KFD has replied. Defendants

22

Multimatic LLC and the Kirrberg Corporation have filed a joint statement of non-opposition.

23

Having read and considered the papers filed in support of and in opposition to the motion,

24

the Court rules as follows.2

25
26
27
28

1

The motion was filed on behalf of both KFD and “Third Party Defendant Kenneth
Daer” (see Mot. at 1:26-27) but seeks to amend a pleading filed by KFD; the Court refers
herein to the moving party as KFD.
2

On March 29, 2011, the Court took the matter under submission and vacated the
hearing scheduled for April 1, 2011.

1

BACKGROUND

2

The instant action, filed October 1, 2008 by KFD, “aris[es] out of environmental

3

contamination at and around 2907 E Street, in Eureka California” (“the Property”), at which

4

location KFD operates a dry cleaner. (See Fourth Amended Complaint ¶¶ 1, 17.) By the

5

instant motion, KFD seeks leave to amend its pleading to add Kenneth Daer (“Daer”) as a

6

plaintiff “due to his status as an owner of the Property” (see Mot. at 3:5) from “on or about

7

1980" (see Mot. Ex. 1 at 3:27).
LEGAL STANDARD

8
9

A party seeking a second or successive amendment “may amend its pleading only

10

with the opposing party’s written consent or the court’s leave.” See Fed. R. Civ. P. 15(a).

11

Generally, Rule 15 provides a “liberal amendment policy,” under which “leave to amend

12

should be granted unless amendment would cause prejudice to the opposing party, is

13

sought in bad faith, is futile, or creates undue delay.” See Johnson v. Mammoth

14

Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). An amendment sought after a

15

deadline imposed by a scheduling order, however, may be made only upon a showing of

16

“good cause.” See id. at 609. “Unlike Rule 15(a)’s liberal amendment policy which focuses

17

on the bad faith of the party seeking to interpose an amendment and the prejudice to the

18

opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the

19

party seeking the amendment.” See Johnson, 975 F.2d 609. Where “the party seeking the

20

extension” demonstrates the pretrial schedule “cannot reasonably be met despite the

21

diligence of [such] party,” the district court “may modify the pretrial schedule.” See id.3
DISCUSSION

22
23
24

On March 13, 2009, at the initial case management conference, the Court entered a
scheduling order setting June 12, 2009 as the deadline for any party to move to amend its

25
26
27
28

3

Here, KFD did not move for a modification but only for leave to amend. In
Johnson, the Ninth Circuit held a district court may deny as untimely a motion to amend the
pleadings made after a scheduling order deadline has passed. See 975 F.2d at 609.
Nevertheless, the Court will consider KFD’s motion as including a request to modify the
scheduling order, and will decide the motion on its merits.
2

1

pleadings.4 Thereafter, on June 12, 2009, KFD filed a motion for leave to file a First

2

Amended Complaint, which motion was granted. KFD subsequently has sought and been

3

granted leave to file three additional amended complaints.5 Each such amendment has

4

resulted in additional amended answers and counterclaims, as well as motions to dismiss

5

and strike. Now, more than two years from the date this action was filed, the pleadings

6

have yet to close, and four motions to dismiss KFD’s Fourth Amended Complaint currently

7

are pending before the Court.
As noted above, the instant motion is brought for the sole purpose of “add[ing]

8
9

Kenneth Daer as a [p]laintiff due to his status as the owner of the Property.” (See Mot. at

10

3:5.) As KFD essentially concedes in its proposed Fifth Amended Complaint, however,

11

such fact is not newly discovered, as KFD and Daer have known of Daer’s ownership for at

12

least three decades (see Mot. Ex. A ¶ 17); as KFD further concedes, Daer “is already a

13

party to this lawsuit” (see KFD Reply to Firbimatic at 3:2) and, indeed, Daer has

14

continuously been a party since the City named him as a third-party defendant on June 12,

15

2009.

16

KFD explains its newfound interest in adding Daer as a plaintiff as follows: “Counsel

17

for the City and for [RR] Street and Firbimatic informed KFD in early 2011 that they may

18

move to dismiss certain claims brought against them because KFD, despite being named a

19

responsible party by the Regional Water Quality Control Board, is not the owner of the

20

Property.” (See KFD Reply to Firbimatic and RR Street at 2:27-3:1; KFD Reply to the City

21

at 3:5-8.) KFD has had notice of the possible relevance of property ownership, however,

22

since at least June 14, 2010, when Firbimatic moved to dismiss KFD’s strict liability and

23

negligence claims on the ground, inter alia, that “KFD does not clearly allege that it actually

24
4

25
26
27
28

On August 6, 2010, the Court extended the deadline for filing amended pleadings
to October 15, 2010.
5

The instant motion represents KFD’s sixth motion for leave to amend its pleadings,
as KFD filed two separate motions for leave to file a Fourth Amended Complaint, the first of
which was denied for the reason that the proposed pleading suffered from “some of the
same deficiencies” the Court had found in KFD’s Third Amended Complaint. (See Order
Denying Pl.s’ Mot for Leave to file Fourth Amended Complaint, filed Nov. 22, 2010.)
3

1

owns any soil or groundwater” at the Property, and thus lacked standing to assert such

2

claims. (See Firbimatic Mot. to Dismiss KFD’s Third Am. Compl. at 20:3, filed June 14,

3

2010.)

4

In sum, KFD has been aware of the factual predicate for the instant motion for

5

decades, and, for over seven months prior to the filing of said motion, has been aware that

6

certain of the parties were asserting such fact to be a necessary element of certain of

7

KFD’s claims. In short, KFD has failed to show good cause for its belated request to file yet

8

another amended complaint. See Johnson, 975 F.2d at 609-10 (finding plaintiff “failed to

9

demonstrate good cause for his belated motion to amend” where plaintiff “fail[ed] to heed

10

clear and repeated signals that not all necessary parties has been named in the

11

complaint”).

12

Moreover, KFD’s motion raises serious concerns as to prejudice. The case has

13

been pending for two and a half years. There are numerous parties to the action.6

14

Numerous motions have been filed and heard with respect to the pleadings alone. The

15

defendants have a right to have the claims against them heard and not hanging over their

16

heads with no end in sight. Allowing unending amendments, with the motions to dismiss

17

and strike, which inevitably follow, prevents that day from approaching let alone arriving.

18

Simply put, at some point, the pleadings must close.
CONCLUSION

19
20
21
22
23

For the reasons stated above, KFD’s “Motion to File Fifth Amended Complaint” is
hereby DENIED.
IT IS SO ORDERED.
Dated: April 22, 2011
MAXINE M. CHESNEY
United States District Judge

24
25
26
27
28

6

Including KFD and Daer, the action currently encompasses fourteen parties.
4