Lil' Man in the Boat, Inc. v. City and County of San Francisco et al

Filing 84

ORDER DENYING MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT by Judge Jon S. Tigar denying 79 Motion to Amend/Correct. (wsnS, COURT STAFF) (Filed on 4/19/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LIL’ MAN IN THE BOAT, INC.,

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Plaintiff,

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v.

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CITY AND COUNTY OF SAN
FRANCISCO, et al.,

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United States District Court
Northern District of California

Case No. 17-cv-00904-JST
ORDER DENYING MOTION FOR
LEAVE TO FILE A SECOND
AMENDED COMPLAINT
Re: ECF Nos. 79, 80, 81

Defendants.

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Before the Court is Plaintiff Lil’ Man in the Boat, Inc.’s motion for leave to file a second

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amended complaint. ECF No. 79. Defendants City and County of San Francisco, San Francisco

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Port Commission, Elaine Forbes, Peter Dailey, Jeff Bauer, and Joe Monroe oppose the motion.

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ECF No. 80. The Court will deny the motion.

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I.

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BACKGROUND
Lil’ Man operates a charter vessel out of South Beach Harbor. ECF No. 33 ¶ 1. South

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Beach Harbor is a “full service marina” on the San Francisco Bay, operated by the San Francisco

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Port Commission. ECF No. 54 at 2. The harbor has two “guest docks” relevant to this litigation,

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known as the North Dock and the South Dock. Id.

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In 2016, harbormaster Joe Monroe and his staff asked commercial vessels using South

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Beach Harbor to sign a new landing agreement. Id. Lil’ Man refused to sign the agreement. ECF

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No. 50-2 at 5-6. In February 2017, Lil’ Man brought this suit as a putative class action, asserting

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four claims under 42 U.S.C. § 1983: violation of the Tonnage Clause of the United States

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Constitution; violation of the First Amendment right to petition; violation of the Commerce

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Clause; and violation of the Rivers and Harbors Act. ECF No. 1. Lil’ Man also asserted claims

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under the Bane Act, which the Court dismissed on Defendants’ motion. ECF No. 29.

Lil’ Man amended its complaint in August 2017. ECF No. 33. On September 6, 2017, the

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parties appeared for a case management conference, and the Court issued a scheduling order

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setting September 15, 2017 as the deadline to amend the pleadings. ECF No. 37.

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On January 11, 2018, the parties filed a stipulated request to allow Lil’ Man to file a

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second amended complaint. ECF No. 38. The Court denied the request the following day because

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the parties provided no explanation of good cause for the failure to comply with the deadline to

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amend the pleadings set forth in the scheduling order. ECF No. 29.
Thereafter, Defendants moved for judgment on the pleadings as to the First Amendment

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claim and the claims for violation of California Business and Professions Code § 23300. ECF No.
40. The Court granted that motion in September 2018. ECF No. 49. In October 2018, Lil’ Man

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United States District Court
Northern District of California

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moved for class certification on its remaining claims. ECF No. 50. The Court denied the motion

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for lack of numerosity. ECF No. 66.
In January 2019, the Court held a further case management conference and set March 15,

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2019 as the deadline to file a motion to amend the pleadings. ECF No. 71. On the day of the

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deadline, Lil’ Man moved to file a second amended complaint. ECF No. 79. Defendants oppose

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the motion. ECF No. 80.

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II.

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LEGAL STANDARD
Under Federal Rule of Civil Procedure 15(a)(2), a “court should freely give leave [to

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amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Court considers five factors in

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deciding a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party,

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futility of amendment, and whether the plaintiff has previously amended its complaint. In re W.

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States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013). The rule is “to

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be applied with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051

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(9th Cir. 2003) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.

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2001)). Generally, a court should determine whether to grant leave indulging “all inferences in

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favor of granting the motion.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999).

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“Courts may decline to grant leave to amend only if there is strong evidence of ‘undue delay, bad

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faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
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amendments previously allowed, undue prejudice to the opposing party . . . or futility of

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amendment, etc.’” Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th

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Cir. 2013) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
Requests to modify a scheduling order made after the Court has set a deadline for

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amending the pleadings are governed by Federal Rule of Civil Procedure 16. Coleman v. Quaker

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Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). Rule 16 requires “good cause” and the consent of

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the Court to amend a scheduling order. Fed. R. Civ. P. 16(b)(4). This good cause standard

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“primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “The pretrial schedule may be modified ‘if it

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cannot reasonably be met despite the diligence of the party seeking the extension.’” Zivkovic v. S.

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United States District Court
Northern District of California

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Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson, 975 F.2d at 609).

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III.

DISCUSSION
Lil’ Man seeks leave to file a second amended complaint “to add a claim for retaliation

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[under 42 U.S.C. § 1983] arising from facts that arose after the litigation was filed, and after

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Plaintiff was last permitted leave to amend its complaint.” ECF No. 79 at 2. Specifically, Lil’

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Man alleges that Defendants shut down, then tore down, the North Dock in retaliation for Lil’

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Man’s filing of this lawsuit. ECF No. 79-3 ¶¶ 75-89. The closure of the North Dock allegedly

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occurred on April 24, 2017; “[t]he North Dock was removed by Defendants entirely in 2018.” Id.

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¶ 83.

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As an initial matter, the Court notes that the motion is controlled by Rule 16 of the Federal

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Rules of Civil Procedure, and not Rule 15 as Lil’ Man’s motion suggests. The Court previously

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set September 15, 2017 as the deadline to amend the pleadings, ECF No. 37, and the present

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motion was filed a year-and-a-half after that date. Thus, Lil’ Man must demonstrate good cause

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before the Court will allow amendment. Fed. R. Civ. P. 16(b)(4). Lil’ Man argues that it

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understood the Court’s January 2019 order to have “implicitly modified the prior case

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management order” which set September 15, 2017 as the deadline to amend the pleadings. ECF

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No. 81 at 3. The Court did not intend to, and did not, modify its prior case management order. It

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merely set a deadline for the filing of Plaintiff’s motion. In fact, the Court reminded Plaintiff of
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the need to show good cause at the January 30, 2019 case management conference. Moreover, in

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January 2018, the Court denied a stipulated request to allow Lil’ Man to file a second amended

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complaint due to the parties’ failure to make the good cause showing required by Rule 16. ECF

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No. 39. The inference Lil’ Man draws from the setting of a motion deadline is not reasonable.

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Lil’ Man next attempts to demonstrate diligence and good cause by separating its

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allegation that Defendants shut down the North Dock from its allegation that they closed the North

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Dock, and focusing the Court on the latter event. Because the argument was made for the first

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time on reply, the Court need not consider it. Ass’n of Irritated Residents v. C & R Vanderham

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Dairy, 435 F. Supp. 2d 1078, 1089 (E.D. Cal. 2006) (“The Court does not consider new facts or

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argument made for the first time in a reply brief.”).

United States District Court
Northern District of California

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The argument also fails, however, considered on the merits. Plaintiff’s proposed amended

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complaint makes clear that the City’s actions were all part of one alleged course of conduct. See,

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e.g., ECF No. 79-3 ¶ 82 (“Upon information and belief, in response to Plaintiff’s prosecution of

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this litigation, government officials, i.e., Defendants, took adverse retaliatory action against

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Plaintiff by shutting down, and subsequently tearing down the North Dock, thereby precluding

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Plaintiff’s access and use.”). That course of conduct began in April 2017. Waiting until March

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2019 to file a proposed amended complaint does not demonstrate diligence.

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Finally, Lil’ Man asserts that its proposed amendments respond to the Court’s orders

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granting partial judgment on the pleadings, ECF No. 49, and denying Lil Man’s motion for class

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certification, ECF No. 66. ECF No. 79 at 3. These matters do not require amendment of the

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complaint.
CONCLUSION

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For the foregoing reasons, Lil’ Man’s motion for leave to file a second amended complaint
is denied.
IT IS SO ORDERED.
Dated: April 19, 2019
______________________________________
JON S. TIGAR
United States District Judge
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