Berg vs. Bed Bath & Beyond, Inc.

Filing 203

ORDER DENYING PLAINTIFF'S OBJECTION TO MAGISTRATE JUDGE CHANG'S ORDER DENYING PLAINTIFF'S FOURTH MOTION TO AMEND SCHEDULING ORDER TO GRANT LEAVE TO FILE A SECOND AMENDED COMPLAINT (ECF NO. 192 ) - Signed by JUDGE HELEN GILLM OR on 11/30/2017. "Pursuant to Title 28, United States Code, Section 636(b)(1)(A) and Local Rule 74.1, the ORDER DENYING PLAINTIFF'S FOURTH MOTION TO AMEND SCHEDULING ORDER TO GRANT LEAVE TO FILE A SECOND AMENDED COMP LAINT (ECF No. 186 ) is AFFIRMED. PLAINTIFF'S OBJECTION TO MAGISTRATE JUDGE CHANG'S ORDER DENYING PLAINTIFF'S FOURTH MOTION TO AMEND SCHEDULING ORDER TO GRANT LEAVE TO FILE A SECOND AMENDED COMPLAINT (ECF No. 192 ) is DENIED." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GLENDA BERG,

CIVIL NO. 15-00361 HG-KSC

)
)
Plaintiff,
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vs.
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BED BATH & BEYOND, INC.;
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STANLEY ACCESS TECHNOLOGIES, )
LLC,
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Defendants.
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________________________________)
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BED BATH & BEYOND INC.,
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Cross Claimant,
)
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vs.
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STANLEY ACCESS TECHNOLOGIES, )
LLC,
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Cross Defendant.
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)
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STANLEY ACCESS TECHNOLOGIES, )
LLC,
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Cross Claimant,
)
)
)
vs.
)
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BED BATH & BEYOND, INC,
)
)
Cross Defendant.
)
________________________________ )

ORDER DENYING PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE CHANG’S
ORDER DENYING PLAINTIFF’S FOURTH MOTION TO AMEND SCHEDULING ORDER
TO GRANT LEAVE TO FILE A SECOND AMENDED COMPLAINT (ECF No. 192)
Plaintiff Glenda Berg, a disabled person, has filed a
complaint against Bed Bath & Beyond, Inc. and Stanley Access
1

Technologies, LLC.

Plaintiff claims she was injured by automatic

sliding doors, which were manufactured by Stanley Access
Technologies, LLC and installed at Bed Bath & Beyond, Inc.
Plaintiff seeks to amend the scheduling order to grant her
leave to file a Second Amended Complaint.

(ECF No. 159).

Plaintiff’s Objection (ECF No. 192), construed as an appeal,
is DENIED and the Magistrate Judge’s Order (ECF No. 186) is
AFFIRMED.

PROCEDURAL HISTORY
On September 15, 2015, Plaintiff Glenda Berg filed a
Complaint.

(ECF No. 1).

On August 15, 2016, Plaintiff filed a FIRST AMENDED
COMPLAINT.

(ECF No. 59).

On August 25, 2016, Defendant Bed Bath & Beyond, Inc. filed
DEFENDANT BED BATH & BEYOND, INC.’S ANSWER TO FIRST AMENDED
COMPLAINT FILED AUGUST 15, 2016; DEMAND FOR JURY TRIAL; FIRST
AMENDED CROSS-CLAIM AGAINST DEFENDANTS STANLEY BLACK & DECKER,
INC. AND STANLEY ACCESS TECHNOLOGIES, LLC.

(ECF No. 60).

On August 26, 2016, Defendant Stanley Access Technologies,
LLC, filed DEFENDANT STANLEY ACCESS TECHNOLOGIES LLC’S ANSWER TO
FIRST AMENDED COMPLAINT, FILED ON AUGUST 15,2016; DEFENDANT
STANLEY ACCESS TECHNOLOGIES LLC’S CROSS-CLAIM AGAINST DEFENDANT
BED BATH & BEYOND, INC.

(ECF No. 65).

On December 27, 2016, the parties filed a STIPULATION FOR

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DISMISSAL WITH PREJUDICE OF PLAINTIFF’S CLAIMS AGAINST DEFENDANT
STANLEY BLACK & DECKER, INC., CROSS-CLAIM OF DEFENDANT BED BATH &
BEYOND, INC. AGAINST DEFENDANT STANLEY BLACK & DECKER, INC. AND
DEFENDANT STANLEY BLACK & DECKER, INC.’S CROSS-CLAIM AGAINST
DEFENDANT BED BATH & BEYOND, INC.

(ECF No. 99).

On April 24, 2017, the Court issued an ORDER GRANTING, IN
PART, AND DENYING IN PART, DEFENDANT BED BATH & BEYOND, INC.’S
MOTION FOR SUMMARY JUDGMENT.

(ECF No. 141).

On June 19, 2017, Plaintiff filed her FOURTH MOTION TO
AMEND/CORRECT THE SCHEDULING ORDER.

(ECF No. 159).

On July 21, 2017, Defendant Stanley Access Technologies,
LLC., filed a MEMORANDUM IN OPPOSITION RE FOURTH MOTION TO
AMEND/CORRECT THE SCHEDULING ORDER.

(ECF No. 168).

On July 26, 2017, Defendant Bed Bath & Beyond, Inc., filed a
STATEMENT OF NO POSITION RE FOURTH MOTION TO AMEND/CORRECT THE
SCHEDULING ORDER.

(ECF No. 171).

On August 1, 2017, Plaintiff improperly filed a REPLY TO
STANLEY ACCESS TECHNOLOGIES’ OPPOSITION RE PLAINTIFF’S FOURTH
MOTION TO AMEND/CORRECT THE SCHEDULING ORDER TO GRANT LEAVE TO
FILE A SECOND AMENDED COMPLAINT.

(ECF No. 172).

On August 2, 2017, Plaintiff filed an ERRATA RE REPLY TO
RESPONSE TO MOTION.

(ECF No. 173).

On August 3, 2017, Plaintiff refiled her REPLY TO RESPONSE
TO MOTION RE FOURTH MOTION TO AMEND/CORRECT THE SCHEDULING ORDER.
(ECF No. 174).
On August 8, 2017 Plaintiff filed her FIFTH MOTION TO
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AMEND/CORRECT THE SCHEDULING ORDER.

(ECF No. 175).

On August 14, 2017, Defendant Bed Bath & Beyond, Inc. filed
their STATEMENT RE FIFTH MOTION TO AMEND/CORRECT THE SCHEDULING
ORDER.

(ECF No. 183).

On August 14, 2017, Defendant Stanley Access Technologies,
Inc. filed their MEMORANDUM IN OPPOSITION RE FIFTH MOTION TO
AMEND/CORRECT THE SCHEDULING ORDER.

(ECF No. 184).

On August 16, 2017, the Magistrate Judge held a hearing on
Plaintiff’s FOURTH MOTION TO AMEND/CORRECT THE SCHEDULING ORDER
and FIFTH MOTION TO AMEND/CORRECT THE SCHEDULING ORDER. The
Magistrate Judge took the FOURTH MOTION TO AMEND/CORRECT THE
SCHEDULING ORDER under advisement and granted the FIFTH MOTION TO
AMEND/CORRECT THE SCHEDULING ORDER. The trial date was continued
to January 17, 2018.

(ECF No. 185).

On August 17, 2017, Magistrate Judge Chang issued an ORDER
DENYING PLAINTIFF’S FOURTH MOTION O AMEND SCHEDULING ORDER TO
GRANT LEAVE TO FILE A SECOND AMENDED COMPLAINT.

(ECF No. 186).

On September 7, 2017, Plaintiff filed a pleading entitled
“PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE CHANG’S ORDER DENYING
PLAINTIFF’S FOURTH MOTION TO AMEND SCHEDULING ORDER TO GRANT
LEAVE TO FILE A SECOND AMENDED COMPLAINT” which the Court
construes as an appeal of the Magistrate Judge’s order filed on
August 17, 2017.

(ECF No. 192).

On September 25, 2017, Defendant Stanley Access
Technologies, Inc. filed a MEMORANDUM IN OPPOSITION RE FIRST
MOTION TO AMEND/CORRECT ORDER DENYING FOURTH MOTION TO AMEND
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SCHEDULING ORDER TO GRANT LEAVE TO FILE A SECOND AMENDED
COMPLAINT.

(ECF No. 196).

On September 25, 2017, Defendant Bed Bath & Beyond, Inc.
filed a STATEMENT RE FIRST MOTION TO AMEND/CORRECT ORDER DENYING
FOURTH MOTION TO AMEND.

(ECF No. 197).

On October 1, 2017, Plaintiff filed her MEMORANDUM IN REPLY.
(ECF No. 198).

STANDARD OF REVIEW
Any party may appeal a magistrate judge's nondispositive
pretrial order.

D. Haw. L. Civ. R. 74.1.

A motion to amend may

be dispositive under certain circumstances.

Bastidas v.

Chappell, 791 F.3d 1155, 1163 (9th Cir. 2015).

The Magistrate

Judge’s Order in this case is not dispositive because it does not
effectively dispose of a cause of action nor preclude ultimate
relief.

Id. at 1164.

The district judge shall consider the appeal and shall not
set aside any portion of the magistrate judge's order unless it
is clearly erroneous or contrary to law.

28 U.S.C. §

636(b)(1)(A); Fed. R. Civ. P. 72(a); D. Haw. L. Civ. R. 74.1;
McKeever v. Block, 932 F.2d 795, 799 (9th Cir. 1991). The
district judge may also reconsider sua sponte any matter
determined by a magistrate judge. See D. Haw. L. Civ. R. 74.1.
A. Clearly Erroneous
The clearly erroneous standard applies to factual findings.
5

Lovell v. United Airlines, Inc., 728 F. Supp. 2d 1096, 1100 (D.
Haw. 2010); Tierney v. Torikawa, 2012 WL 2359960 *1 (D.Haw. 2012)
(internal quotation omitted).

After reviewing the entire record,

the district judge must accept the magistrate judge's ruling
unless the district judge is “left with a definite and firm
conviction that a mistake has been committed.”

Burdick v. Comm'r

Internal Revenue Serv., 979 F.2d 1369, 1370 (9th Cir. 1992).
This standard is “significantly deferential” to the magistrate
judge's judgment.

See Hernandez v. Tanninen, 604 F.3d 1095, 1100

(9th Cir. 2010) (internal citation omitted).
B. Contrary to Law
The contrary to law standard applies to legal conclusions
and allows for de novo review.

Na Pali Haweo Cmty. Ass'n v.

Grande, 252 F.R.D. 672, 674 (D.Haw. 2008).

A decision is

contrary to law if it applies the wrong legal standard or
neglects to consider all elements of the applicable standard.
See Hunt v. National Broadcasting Co., 872 F.2d 289, 292 (9th
Cir. 1989); Na Pali, 252 F.R.D. at 674.

ANALYSIS
Plaintiff has filed a pleading entitled “PLAINTIFF’S
OBJECTION TO MAGISTRATE JUDGE CHANG’S ORDER DENYING PLAINTIFF’S
FOURTH MOTION TO AMEND SCHEDULING ORDER TO GRANT LEAVE TO FILE A
SECOND AMENDED COMPLAINT.”

(ECF No. 192).

The Order Plaintiff

objects to is not a Findings and Recommendation by the Magistrate
6

Judge and is not subject to an “objection.”

The Court construes

Plaintiff’s “objection” as an appeal.

I. Timeliness of Appeal
District of Hawaii Local Rule 74.1 allows a party to appeal
a magistrate judge's decision to a district judge within 14 days
after being served with a copy of the order.

Three days are

added to a fixed deadline when service is made electronically.
See Fed. R. Civ. P. 6(d).
The 14 day period “may be altered by the magistrate judge or
a district judge.”

Local Rule 74.1.

The district courts have

broad discretion in interpreting, applying, and determining the
requirements of their own local rules and general orders.

United

States v. Gray, 876 F.2d 1411, 1414 (9th Cir. 1989).
On August 17, 2017, the Magistrate Judge issued an Order
Denying Plaintiff’s Fourth Motion to Amend Scheduling Order to
Grant Leave to File a Second Amended Complaint.
“Magistrate Judge’s Order,” ECF No. 186).

(hereafter

On September 7, 2017,

21 days after the Magistrate Judge’s Order was issued,

Plaintiff

filed his “objection” that the Court construes as an appeal of
the Magistrate Judge's Amended Order.
The appeal was not timely filed.
her appeal was filed late.
No. 198).

(ECF No. 192).
Plaintiff concedes that

(Memorandum in Reply at pp. 1-2, ECF

Attorney Lunsford Dole Phillips blames his co-

counsel’s misinterpretation of the local rules.
The Appeal is denied as untimely.
7

(Id. at p. 2).

Even if timely, the objection

is denied as the Magistrate Judge’s decision is not contrary to
law.

II. The Magistrate Judge’s Opinion Was Not Contrary to Law
A. Federal Rule of Civil Procedure 15(a) and 16(b)(4)
A plaintiff that seeks leave to amend his or her complaint
after the deadline for filing such a motion has passed must first
establish that there is good cause to amend the scheduling order
pursuant to Federal Rule of Civil Procedure 16(b)(4).

In re

Western States Wholesale, 715 F.3d 716, 737 (9th Cir. 2013);
Siliga v. Deutsche Bank Nat. Trust Co., 637 Fed. Appx. 438, 440
(9th Cir. 2016).
Rule 16(b)(4) provides that a scheduling order may be
amended only “for good cause.”

Fed. R. Civ. P. 16(b)(4).

The

good cause standard primarily considers the diligence of the
party seeking the amendment.

Johnson v. Mammoth Recreations,

Inc., 975 F.2d 604, 609 (9th Cir. 1992).
Plaintiff must also establish that amendment is appropriate
under Federal Rule of Civil Procedure 15(a).
at 608 (citations omitted).

Johnson, 975 F.2d

A party may amend its pleading

before trial with the opposing party’s consent or the court’s
leave pursuant to Fed. R. Civ. P. 15(a).

The rule states that

the court should freely give the plaintiff leave to amend the
complaint when justice so requires.

Fed. R. Civ. P. 15(a)(2).

Courts consider bad faith, dilatory motive on the movant’s part,

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undue delay, prejudice to the opposing party, and futility in
reviewing a plaintiff’s request to amend the complaint under Rule
15(a).

In re Morris, 363 F.3d 891, 894 (9th Cir. 2004).

B. The Magistrate Judge’s Order
Plaintiff filed her initial Complaint over two years ago in
2015.

(ECF No. 1).

Plaintiff contends that a basis for punitive

damages was revealed at the May 12, 2017 deposition of David
Sitter.

(Plaintiff’s Appeal at p. 2, ECF No. 192-1).

Sitter is

a witness for Defendant Stanley Access Technologies, LLC.

(Id.)

Plaintiff could have sought to add a claim for punitive
damages well before she did.

Plaintiff’s own expert, Warren

Davis, is of the opinion that automatic doors, like the one at
issue in this suit, are defectively designed and pose a risk to
those who rely on mobility assistant devices.

Plaintiff received

her own expert’s preliminary report, containing Davis’ opinion,
on November 20, 2016.

Plaintiff had been aware of her expert’s

opinion for seven months before filing her Fourth Motion to Amend
the Scheduling Order to Grant Leave to File a Second Amended
Compliant on June 19, 2017.
ECF No. 168-1).

(Preliminary Report of Warren Davis,

Plaintiff’s seven month delay in moving to amend

her pleading fails to demonstrate diligence under Rule 16.

See

Schwerdt v. Int'l Fidelity Ins. Co., 28 Fed. App’x. 715, 719 (9th
Cir. 2002).
Plaintiff possessed her expert’s report one month before the
dispositive motions deadline of December 21, 2016, and four
9

months before the close of discovery on March 24, 2017.
Plaintiff filed her Motion to Amend her Complaint on June 19,
2017, only three months prior to the scheduled trial date of
September 12, 2017.

Plaintiff did not exercise the diligence

demanded by Fed. R. Civ. P. 16(b) in seeking to amend her
Complaint.
Amendment is also not appropriate under Fed. R. Civ. P.
15(a) given the length of time that Plaintiff had the knowledge
and opportunity to amend the First Amended Complaint.
The Magistrate Judge’s Order filed on August 17, 2017, is
AFFIRMED.

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CONCLUSION
Pursuant to Title 28, United States Code, Section
636(b)(1)(A) and Local Rule 74.1, the ORDER DENYING PLAINTIFF’S
FOURTH MOTION TO AMEND SCHEDULING ORDER TO GRANT LEAVE TO FILE A
SECOND AMENDED COMPLAINT (ECF No. 186) is AFFIRMED.
PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE CHANG’S ORDER
DENYING PLAINTIFF’S FOURTH MOTION TO AMEND SCHEDULING ORDER TO
GRANT LEAVE TO FILE A SECOND AMENDED COMPLAINT (ECF No. 192) is
DENIED.

IT IS SO ORDERED.

DATED:

Honolulu, Hawaii, November 30, 2017.

Glenda Berg vs. Bed Bath & Beyond, Inc., and Stanley Access
Technologies, LLC; Cross-Claimant Bed Bath & Beyond Inc. vs.
Cross-Defendant Stanley Access Technologies, LLC; Cross-Claimant
Stanley Access Technologies, LLC, vs. Cross-Defendant Bed Bath &
Beyond, Inc.; Civ No. 15-00361 HG-KSC; ORDER DENYING PLAINTIFF’S
OBJECTION TO MAGISTRATE JUDGE CHANG’S ORDER DENYING PLAINTIFF’S
FOURTH MOTION TO AMEND SCHEDULING ORDER TO GRANT LEAVE TO FILE A
SECOND AMENDED COMPLAINT (ECF NO. 192)
11