Operating Engineers Health And Welfare Trust Fund For Northern California et al v. Wimmer Excavating, Inc. et al
Filing
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ORDER DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; VACATING HEARING. Signed by Judge Maxine M. Chesney on November 16, 2020. (mmclc1, COURT STAFF) (Filed on 11/16/2020)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OPERATING ENGINEERS HEALTH
AND WELFARE TRUST FUND FOR
NORTHERN CALIFORNIA, et al.,
Plaintiffs,
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v.
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United States District Court
Northern District of California
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ORDER DENYING PLAINTIFFS'
MOTION FOR LEAVE TO FILE FIRST
AMENDED COMPLAINT; VACATING
HEARING
WIMMER EXCAVATING, INC., a
California corporation, and TERRANCE
WIMMER, an individual,
Defendants.
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Case No. 19-cv-06840-MMC
Before the Court is plaintiffs'1 Motion, filed October 16, 2020, "for Leave to File
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First Amended Complaint." Defendants Wimmer Excavating, Inc. ("Wimmer Excavating")
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and Terrance Wayne Wimmer have filed opposition, to which plaintiffs have replied.
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Having read and considered the papers filed in support of and in opposition to the motion,
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the Court deems the matter suitable for determination on the parties' respective written
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submissions, VACATES the hearing scheduled for November 20, 2020, and rules as
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follows.
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In their complaint, plaintiffs allege defendants "have failed and refuse to pay
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contributions" (see Compl. ¶ 14) due to plaintiffs under the terms of a collective
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bargaining agreement ("CBA") signed by defendants and the Operating Engineers Local
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Union No. 3 ("Union") (see Compl. ¶¶ 10-11). By the instant motion, plaintiffs seek leave
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to add an additional defendant, specifically, Valley Earthworks, Inc. ("Valley Earthworks").
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Plaintiffs consist of five "Trust Funds" and one "Trust established under the Labor
Management Relations Act." (See Compl. ¶¶ 1, 2.)
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In the Proposed First Amended Complaint ("Proposed FAC"),2 plaintiffs allege Wimmer
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Excavating and Valley Earthworks are "a single employer and/or are continuations or
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alter egos of one another" (see Proposed FAC ¶ 3) and, consequently, that Valley
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Earthworks is liable for Wimmer Excavating's alleged failures to make contributions (see
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Proposed FAC ¶ 16). Plaintiffs also allege in the Proposed FAC that Valley Earthworks,
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by reason of Wimmer Excavating's having "sold or transferred its assets, stock and/or
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operations" to Valley Earthworks, is "now deemed a signatory" to the CBA (see Proposed
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FAC ¶ 11), and that Valley Earthworks thereafter "failed to report and pay contributions
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for work performed by Valley Earthworks' employees" (see Proposed FAC ¶ 17).
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On January 31, 2020, the Court conducted a case management conference at
United States District Court
Northern District of California
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which the Court set a trial date of February 8, 2021, as well as a number of pretrial
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deadlines in 2020, including a March 31 deadline to amend the pleadings, an August 7
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deadline to complete non-expert discovery, a September 22 deadline to conduct expert
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discovery, and an October 22 deadline to file dispositive motions (see Civil Minutes, filed
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January 31, 2020; Pretrial Preparation Order, filed February 3, 2020), all of which
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deadlines have now passed.
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Plaintiffs filed the instant motion for leave to amend six and a half months after the
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deadline to amend. Rule 16(b) provides that a deadline set in a pretrial scheduling order
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"shall not be modified except upon a showing of good cause." See Fed. R. Civ. P. 16(b).
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Here, plaintiffs argue, good cause exists to allow them to amend to add a new defendant
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at this time because, they assert, they "became aware of the existence of Valley
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Earthworks" in "July 2020" (see Shuldiner Decl. ¶ 10), that the Union thereafter
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"conducted its own evaluation" and "[took the] position" that Valley Earthworks is a
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"signatory to a Collective Bargaining Agreement with the Union" (see id.), that, on August
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28, 2020, plaintiffs contacted defendants to inquire if defendants would agree to an
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The Proposed FAC is attached as Exhibit L to the Declaration of Allan D.
Shuldiner.
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amendment adding Valley Earthworks as a defendant (see id. (citing Ex. H)), and that, on
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September 2, 2020, defendants stated the parties "were too far along in the process to
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amend the Complaint" (see id. ¶ 11).3
To show good cause to amend a pretrial schedule, the movant must, at the outset,
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show "diligence." See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th
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Cir. 1992) (holding if movant "was not diligent, the inquiry should end"). Here, plaintiffs
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have not explained how they learned of the existence of Valley Earthworks, let alone
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why, with a limited amount of discovery, they could not have obtained that information at
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an earlier date. Nor have plaintiffs explained why, over a period of several weeks, they
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continued to ask defendants the same question defendants answered on September 2,
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United States District Court
Northern District of California
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2020.
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Moreover, even assuming plaintiffs were, in the exercise of reasonable diligence,
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unable to learn of the existence of Valley Earthworks prior to July 2020, and even further
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assuming it was reasonable for plaintiffs to wait to file the instant motion until a month
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and a half had passed from the time defendants advised plaintiffs they would not stipulate
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to adding Valley Earthworks as a defendant, the Court finds plaintiffs have failed to show
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good cause to add a new defendant. Although plaintiffs assert "[t]here will be no delay
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caused by the filing of the [P]roposed First Amended Complaint" (see id. at 8:18-19),
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plaintiffs do not contend their claims against Valley Earthworks can be tried without
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reopening discovery, and, indeed, state additional discovery will be necessary. (See Pl.'s
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Mot. at 8:16-17 (acknowledging plaintiffs will need to conduct "audit of Valley
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Earthworks"); see also Shuldiner Decl. Ex. I (acknowledging "further discovery may
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develop additional facts").) Consequently, if the Court were to grant the instant motion,
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not only would the discovery and dispositive motion deadlines have to be extended, but
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the trial date as well.
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Thereafter, on September 9, 18, and 23, plaintiffs repeated their inquiry and,
according to plaintiffs, received no response. (See id. ¶¶ 12-14.)
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"Disruption to [a] schedule of the court" is "not harmless." See Wong v. Regents
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of the University of California, 410 F.3d 1052, 1062 (9th Cir. 2005). "Courts set such
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schedules to permit the court and the parties to deal with cases in a thorough and orderly
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manner, and they must be allowed to enforce them, unless there are good reasons not
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to." Id. Such good reasons do not exist here, as plaintiffs need not add Valley
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Earthworks to the instant action in order to obtain the relief they seek against it. First, as
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defendants point out, to the extent plaintiffs contend Valley Earthworks is, under an alter
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ego theory, liable for defendants' alleged violations of the CBA and, in the event they
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obtain a judgment against Wimmer Excavating, plaintiffs may move to add Valley
Earthworks as a judgment debtor. See In re Levander, 180 F.3d 1114, 1121 (9th Cir.
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United States District Court
Northern District of California
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1999) (setting forth circumstances under which "new party," as "alter ego of old party,"
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can be added to judgment as "additional judgment debtor[ ]"). Second, to the extent
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plaintiffs contend Valley Earthworks itself has violated the CBA, those violations are not
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part of the instant action and can be pursued in a separate action.
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Accordingly, the motion for leave to amend is hereby DENIED.
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IT IS SO ORDERED.
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Dated: November 16, 2020
MAXINE M. CHESNEY
United States District Judge
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