Lapin v. Widmyer et al
MEMORANDUM DECISION AND ORDER RE: PLAINTIFFS MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT (DKT. 77 ) - IT IS HEREBY ORDERED that Plaintiffs Motion for Leave to File Third Amended Complaint (Dkt. 77 ) is DENIED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 2:17-CV-00304-EJL-REB
GREGORY LAPIN, an individual,
STEVEN D. WIDMYER and JANE DOE
WIDMYER, individually and the community
property comprised thereof; WILLIAM T.
REAGAN and JANE DOE REAGAN,
individually and the community property
comprised thereof; BW REAL ESTATE LLC,
an Idaho limited liability company;
BENJAMIN WIDMYER in his capacity as
sole member of BW Real Estate LLC;
BENJAMIN WIDMYER and JANE DOE
WIDMYER, individually and the community
property comprised thereof; and IDAHO
HOUSING & FINANCE ASSOCIATION, an
independent public body corporate and politic,
MEMORANDUM DECISION AND
ORDER RE: PLAINTIFF’S MOTION
FOR LEAVE TO FILE THIRD
Pending is Plaintiff’s Motion for Leave to File Third Amended Complaint. (Dkt. 77.)
Having carefully considered the record, and otherwise being fully advised, the Court enters the
following Memorandum Decision and Order.
Plaintiff Gregory Lapin filed this action on July 20, 2017, alleging that Defendants
violated state and federal laws designed to protect the rights of disabled persons. Prior to any
Defendant filing an Answer (and prior to the issuance of a scheduling order), Lapin amended his
Complaint as of right under Federal Rule of Civil Procedure 15(a)(1)(B) on September 1, 2017.
(Dkt. 15.) District Judge Edward J. Lodge, the presiding judge in this matter, issued a
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF’S THIRD MOTION TO AMEND – 1
scheduling order on October 11, 2017. (Dkt. 29.) Among other things, the scheduling order
established a deadline of December 12, 2017 to amend pleadings.
The deadline to amend pleadings was subsequently extended to April 20, 2018. (Dkt.
49.) The amended case management order provided in part that motions “to amend pleadings
and join parties, except for allegations of punitive damages, must be filed on or before April 20,
2018. This deadline will only be extended for good cause shown.” A standard footnote stated
that the “Ninth Circuit has held that motions to amend filed after the Scheduling Order deadline
are governed, not by the liberal provisions of Fed. R. Civ. P. 15(a), but instead, by the more
restrictive provisions of Fed. R. Civ. P. 16(b) requiring a showing of “good cause.” Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992).”
Lapin moved for leave to file his second amended complaint on April 20, 2018. (Dkt.
52.) It was not opposed. (Dkts. 53, 55, 56.) The motion was granted under Rule 15(a)(2) and
Lapin was ordered to file the amended pleading by June 8, 2018. (Dkt. 58.) On June 8, 2018,
Lapin moved to extend the deadline to file his amended pleading. (Dkt. 59.) Finding good cause
to extend the deadline (based in part on the fact that all opposing parties consented to the
extension), the Court granted Lapin an extension through June 18, 2018. (Dkt. 61.) Lapin filed
his Second Amended Complaint on June 15, 2018. (Dkt. 62.)
Certain Defendants moved on July 3, 2018 to dismiss and/or for summary judgment.
(Dkts. 64–69.) On July 24, 2018, Lapin filed a memorandum in opposition, a statement of
disputed material facts, and an affidavit of counsel. (Dkts. 72–74.) Thereafter, Lapin moved for
leave to file his third amended complaint on August 16, 2018. (Dkt. 77.) This motion was
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF’S THIRD MOTION TO AMEND – 2
opposed (Dkts. 81, 82). Lapin did not respond to Defendants’ opposition, and the time for doing
so has passed.
This motion was referred to the undersigned for decision. (Dkts. 29, 49, 77.)
Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give
leave” to amend “when justice so requires.” However, that standard is tightened when a
scheduling order is entered, after which the court may modify the schedule only for good cause.
FED. R. CIV. P. 16(b)(4). Thus, a “party seeking to amend [a] pleading after [the] date specified
in [a] scheduling order must first show ‘good cause’ for amendment under Rule 16(b), then, if
‘good cause’ be shown, the party must demonstrate that amendment [is] proper under Rule 15.”
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992) (citation omitted).
The good cause inquiry focuses primarily on the diligence of the party requesting the
amendment. Id. at 609. “Rule 16 was designed to facilitate more efficient disposition of cases
by settlement or by trial. If disregarded it would ‘undermine the court’s ability to control its
docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the
cavalier.’” Walker v. City of Pocatello, 2017 WL 1650014 at *1 (D. Idaho May 1, 2017)
(quoting Johnson, 975 F.2d at 610); see also Rule 16 Advisory Committee Notes (1983
Amendment). As explained in Johnson:
Unlike Rule 15(a)’s liberal amendment policy which focuses on the bad faith of the
party seeking to interpose an amendment and the prejudice to the opposing party,
Rule 16(b)’s “good cause” standard primarily considers the diligence of the party
seeking the amendment. The district court may modify the pretrial schedule if it
cannot reasonably be met despite the diligence of the party seeking the extension. .
. Although the existence or degree of prejudice to the party opposing the
modification might supply additional reasons to deny a motion, the focus of the
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF’S THIRD MOTION TO AMEND – 3
inquiry is upon the moving party’s reasons for seeking modification. If that party
was not diligent, the inquiry should end.
Id. (quotation marks and citations omitted). In addition, district courts are “given broad
discretion in supervising the pretrial phase of litigation,” including with respect to “decisions
regarding the preclusive effect of a pretrial order.” Johnson, 972 F.2d at 607. If good cause
exists under Rule 16(b), “leave to amend should be granted unless amendment would cause
prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay.” Id.; see
also Branch Banking and Trust Co. v. D.M.S.I., LLC, 871 F.3d 751, 764 (9th Cir. 2017)
(applying Johnson and demonstrating it is still controlling law).
The Court must decide whether Lapin was diligent, under Rule 16, in seeking an
otherwise untimely amendment to his Second Amended Complaint. Lapin fails to recognize his
burden, as his motion draws on the more liberal Rule 15 standard rather than the more restrictive
Rule 16 standard. Lapin contends “justice … requires” granting leave to amend because there is
no evidence of bad faith, undue delay, prejudice to the opposing parties, or futility. Plf.’s Mot.
for Leave to File Third Am. Compl. 2 (Dkt. 77). He makes no mention of diligence or good
cause in his motion or any supporting filings.
Defendants argue that Lapin was not diligent in seeking amendment. They contend that
in the period between Lapin filing his Second Amended Complaint on June 15, 2018 and filing
the instant motion on August 16, 2018, he “has conducted no discovery, or otherwise prosecuted
this case.” (Dkt. 81). Because “Lapin has conducted no discovery in this case, … no additional
facts have been developed to warrant amendment of Lapin’s pleading.” (Id. at 4.) Further, they
argue that the allegations and causes of action contained in the proposed Third Amended
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF’S THIRD MOTION TO AMEND – 4
Complaint were known to Lapin and his counsel prior to the deadline for amending pleadings.
Having conducted no discovery, Defendants contend, Lapin’s amendments cannot be supported
by newly acquired evidence. They urge denial of Lapin’s motion as untimely, given his
demonstrated lack of diligence. (Id. at 4.) Lapin did not respond.
Defendants also argue that, even if Lapin were diligent in seeking amendment, good
cause is lacking because Defendants will be unduly prejudiced by “Lapin’s late attempt to amend
the Complaint after two prior amendments.” Further, “Lapin’s proposed Third Amended
Complaint provides no additional facts, yet seeks to add theories of recovery at a time when
Defendants have relied upon Lapin’s Second Amended Complaint to pursue dispositive
motions.” (Id.) Of some significance is the fact that the pending motion was filed more than
three weeks after Lapin filed a memorandum opposing Defendants’ motion to dismiss. (Dkts.
On balance, the Court finds that Lapin fails to show good cause sufficient to justify
granting his motion. Defendants consented to allow Lapin to file his Second Amended
Complaint and then consented to a further extension on the day it was due to be filed. Diligence
would have called for Lapin to make a full assessment (and inclusion) of potential claims at the
time the opposing parties acquiesced in allowing him an opportunity to file what was then the
third version of his complaint. Moreover, the docket indicates even as Lapin did not engage in
discovery (as averred by Defendants), the Defendants did engage in discovery.1 At a minimum,
District Local Civil Rule 5.4 prohibits filing discovery-related documents unless on order of the
Court or for use in the proceeding, but Lapin filed certificates of service indicating he had served
Plaintiff’s Answers to First Set of Interrogatories and Requests for Production of Documents to
Plaintiff. (Dkts. 70, 71.) These filings were dated July 6, 2018 – between the filing of his
Second Amended Complaint and moving for leave to file a third amended complaint.
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF’S THIRD MOTION TO AMEND – 5
the fact of such discovery creates a likelihood for unnecessary extra expense if the motion for a
third amended complaint is granted.
Moreover, the deadline for fact discovery passed on September 21, 2018 (Dkt. 49).
Defendants would therefore be further prejudiced by the uncertainty of whether that deadline
would be extended, and the delay that would result even if it is extended. Finally, the Court has
considered the drag upon the Court’s calendar and the drag upon the ultimate resolution of this
case that would result if this untimely motion is allowed, in the face of what otherwise is a lack
of good cause.
Accordingly, Lapin’s motion is denied.
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File Third Amended
Complaint (Dkt. 77) is DENIED.
DATED: December 11, 2018
Honorable Ronald E. Bush
Chief U.S. Magistrate Judge
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF’S THIRD MOTION TO AMEND – 6
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