Wilson v. Walmart et al

Filing 74

ORDER that 62 Motion to Add Wells Enterprises, Inc. as a Defendant in this Matter is DENIED. FURTHER ORDERED that 66 Motion to Modify Scheduling Order is DENIED. Signed by Magistrate Judge Peggy A. Leen on 3/4/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DAVID LAWRENCE WILSON,

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Case No. 2:13-cv-00207-RFB-PAL
Plaintiff,

ORDER

v.
(Mot Add Defendant – Dkt. #62)
(Mot Modify – Dkt. #66)

WAL-MART STORES, INC.,
Defendant.

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Before the court is Plaintiff’s Motion to Add Wells Enterprises Inc. as a Defendant in this

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Matter (Dkt. #62) and Plaintiff’s Motion to Modify Scheduling Order (Dkt. #66). The court has

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considered the Motions, Wal-Mart’s Responses (Dkt. ##64, 71) and Plaintiff’s Reply (Dkt. #70)

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which is called a Response in Opposition.

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BACKGROUND

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I.

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The Plaintiff, who is representing himself, submitted an application to proceed in forma

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pauperis (Dkt. #1). On October 17, 2013, the court screened his complaint and amended

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complaint and found that he had stated a claim against Defendants Lucerne Foods, Inc., and

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Vons Companies, Inc., and directed the clerk of the court to issue summons. See Order (Dkt. #5).

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However, the court found that Plaintiff had not stated a claim against Safeway, Inc., and

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Bellevue Ice Cream Plant, and recommended that the claims against them be dismissed for

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failure to state a claim upon which relief could be granted. The district judge affirmed the

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undersigned’s report and recommendation in and Order (Dkt. #7) entered November 6, 2013.

Procedural History.

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Plaintiff’s amended complaint claims that he was injured on February 10, 2011, when he

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purchased ice cream at a Wal-Mart Store in Las Vegas, Nevada. He claims that when he bit into

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the ice cream, it contained a piece of metal which damaged his teeth and one tooth had to be

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extracted.

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The initial Discovery Plan and Scheduling Order (Dkt. #19) was entered January 3, 2014,

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and set a May 19, 2014, deadline to complete discovery. Shortly thereafter, Plaintiff moved to

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add Safeway and Wal-Mart as Defendants. The district judge set the matter for hearing and

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entered a written Order (Dkt. #38) on April 29, 2014, granting Defendant Vons’ motion to

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dismiss. The order also denied Plaintiff’s motion to add Safeway as a Defendant but granted his

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motion to add Wal-Mart and gave the Plaintiff until May 28, 2014, to file an amended complaint.

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An amended complaint was filed, and Wal-Mart filed its Answer (Dkt. #40) on July 14, 2014.

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After Wal-Mart made its appearance, the parties submitted a proposed Discovery Plan

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and Scheduling Order (Dkt. #59) which the court approved in an Order (Dkt. #60) entered

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August 7, 2014. The order established a January 10, 2015, discovery cutoff, and an October 10,

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2014, deadline to amend the pleadings and add parties.

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II.

The Parties’ Positions.
A. The Motion to Add Wells as a Defendant (Dkt. #62).

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Plaintiff’s motion to add Wells as a Defendant was filed January 20, 2015. The motion

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consists of two paragraphs and states that Wells Enterprises, Inc. is a corporation organized

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under Iowa law with its principal place of business in Iowa, and that Plaintiff was informed by

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Wal-Mart that their Great Value ice cream was manufactured by Wells Enterprises, Inc. He

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therefore asks to add Wells as a Defendant.

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Wal-Mart filed an Opposition to the motion (Dkt. #64) pointing out that the deadline for

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amending the pleadings expired October 10, 2014. Wal-Mart also points out that the motion was

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not filed until January 20, 2015, and argues Plaintiff has not established good cause to modify

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the court’s discovery plan and scheduling order. Additionally, Wal-Mart contends that Plaintiff

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has not been diligent in attempting to comply with the court’s discovery plan and scheduling

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order deadlines. Wal-Mart points out that its July 31, 2014, certificate of interested parties

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specifically identified Wells Enterprises, Inc. as an interested party. Wal-Mart’s counsel also

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participated in a Rule 26(f) conference with Plaintiff on July 31, 2014, in which Plaintiff agreed
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to the proposed scheduling order which was submitted to the court. Plaintiff did not advise the

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court or Wal-Mart’s counsel that he needed additional time to investigate the identity of the

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manufacturer of the ice cream or intended to add Wells as a party. Plaintiff purchased the ice

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cream at issue in this case on February 10, 2011, has had the Wal-Mart receipt in his possession,

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and has had four years to discover the manufacturer of the ice cream. He did not initiate the

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lawsuit until February 2013. Wal-Mart asserts that Plaintiff filed his untimely motion to amend

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just before the deadline for filing dispositive motions to avoid a decision on the merits. Finally,

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Wal-Mart argues that it would be unfairly prejudiced if the motion to amend was granted

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because it would be required to participate in additional discovery and would not receive a

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timely ruling on its own motion for summary judgment.

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Plaintiff’s “Response in Opposition” (Dkt. #70) argues that it would be in the interest of

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justice to allow amendment to add Wells Enterprises, Inc. as a Defendant because it is a joint

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tortfeasor which is a necessary and/or indispensable party to this case. Plaintiff claims that Wal-

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Mart has been less than honest with him in responding to his discovery requests and violated

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Rule 33B(1). Plaintiff also contends that Wal-Mart violated its initial disclosure obligations

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under Rule 26(a)(1). Specifically, he claims that he should have been informed that Wal-Mart

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did not manufacture the Great Value ice cream that contained a metal part that injured him.

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Plaintiff believes that Wal-Mart delayed serving responses to his discovery requests because it

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was aware of the October 10, 2014, deadline for filing a motion to amend the pleadings. Finally,

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Plaintiff argues that he would be prejudiced if the motion is denied because he has been denied

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meaningful discovery.

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B. Motion to Modify (Dkt. #66)

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Plaintiff filed the Motion to Modify Scheduling Order (Dkt. #66) on February 9, 2015,

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the day to file dispositive motions. The motion to modify argues that there is good cause to

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modify the court’s discovery plan and scheduling order to allow amendment of the complaint

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because Wal-Mart did not respond to interrogatories he submitted on September 10, 2014,

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requesting discovery of who distributed Great Value ice cream and who manufactured it until

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October 16, 2014. Plaintiff claims that Wal-Mart’s response was the first time he had ever heard
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of Wells Enterprises. He believes that Wal-Mart intentionally waited until the October 10, 2014,

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deadline was past to respond to his discovery request.

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Plaintiff attempted to communicate directly with Wells Enterprises, Inc., but was told to

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go through the law offices of their counsel. The law offices of Phillips Spallas and Angstadt,

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LLC reportedly informed Plaintiff that they would be able to answer any questions he had of by

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Wells Enterprises, Inc.

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document he called “an informal request for information” because Wells was not a party. He

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met with counsel for Wells on December 15, 2014, in a meet-and-confer session where it became

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apparent that he was not going to receive an answer. As a result, he filed a motion to compel.1

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On January 5, 2015, he filed a second set of interrogatories for Wells with nine additional

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questions. He spoke with the Phillips Spallas law firm on February 4, 5 and 6, 2015, but

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received a reply that “basically says they have no knowledge to what I’m asking about.” Under

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these circumstances, Plaintiff argues that Wal-Mart intentionally evaded and concealed the fact

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that Wells Enterprises was the manufacturer of the ice cream and that Wal-Mart has denied him

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meaningful discovery. He therefore believes he has shown good cause to modify the scheduling

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order to allow a late amendment and that denial of this motion would be a manifest injustice.

On October 27, 2014, he submitted an interrogatory to Wells in a

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The motion to modify attaches discovery requests and responses directed to Wal-Mart. It

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also attaches informal requests for information Plaintiff sent to Wells Dairy and Wells

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Enterprises, Inc., as well as a letter from counsel for Wal-Mart, Brenda Entzminger, dated

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February 5, 2014. The letter responds to Plaintiff’s request to meet and confer over interrogatory

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responses. It informs Plaintiff that counsel was unaware that interrogatories had been served on

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Wells, that even if discovery requests had been sent to Wells, Rule 33 did not require Wells to

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respond as it is not a party to this action, and additionally, that the discovery requests were

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untimely served.

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Plaintiff filed a Motion to Compel Wells to Respond to his Discovery Requests (Dkt. #63) on
January 20. 2015. He filed a Motion to Withdraw the Motion to Compel (Dkt. #69) on February
20, 2015, acknowledging that Wells was not a party to this case.
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DISCUSSION

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A party may amend a pleading once “as a matter of course” within twenty-one days after

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serving it. See Fed. R. Civ. P. 15(a)(1)(A). After that, a party may amend its pleading only by

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leave of the court or with the adverse party’s written consent. See Fed. R. Civ. P. 15(a)(2). The

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court has discretion to grant leave and should freely do so “when justice so requires.” Id.  

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Notwithstanding the liberal application of Rule 15, courts may deny leave to amend if it will

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cause: (1) undue delay; (2) undue prejudice to the opposing party; (3) the request is made in bad

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faith; (4) the party has repeatedly failed to cure deficiencies; or (5) the amendment would be

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futile. See Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir.2008).

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However, “a request for leave to amend made after the entry of a Rule 16 Scheduling

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Order is governed primarily by Rule 16(b),” rather than Rule 15. See Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir.1992). Rule 16(b) and Local Rules 6-1 and 26–

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4 require a showing of “good cause” before modifying a scheduling order. See Johnson, 975

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F.2d at 608-09; Fed. R. Civ. P. 16(b); LR 6-1; LR 26-4. Only if the movant establishes good

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cause to modify the scheduling order under Rule 16 does the court consider whether amendment

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is proper under Rule 15. See Johnson, 975 F.2d at 609.

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“Unlike Rule 15(a)’s liberal amendment policy which focuses on the bad faith of the

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party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)’s

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‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Id.

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(Good cause to extend a discovery deadline exists “if it cannot reasonably be met despite the

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diligence of the party seeking the extension”). A party’s carelessness cannot support a finding of

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diligence. Id. The court has broad discretion in supervising the pretrial phase of litigation. See

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Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). Although the court may

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consider prejudice to an opposing party, if the moving party was not diligent in seeking to

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modify a scheduling order, “the inquiry should end.” Coleman, 232 F.3d at 1294-95 (citing

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Johnson, 975 F.2d at 609)).

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In addition to showing good cause Plaintiff must also establish that his failure to act was

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the result of excusable neglect. See LR 26-4(a) (a request to extend a scheduling order deadline
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made less than twenty-one days before expiration of that deadline must be supported by a

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showing of excusable neglect in addition to the good cause required by LR 6-1 and Rule 16).

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Excusable neglect exists where a party’s failure to comply with a deadline was negligent. See

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Lemoge v. United States, 587 F.3d 1188, 1195 (9th Cir.2009). There are at least four factors in

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determining whether neglect is excusable: (1) the danger of prejudice to the opposing party; (2)

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the length of the delay and its potential impact on the proceedings; (3) the reason for the delay;

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and (4) whether the movant acted in good faith. See Bateman v. U.S. Postal Serv., 231 F.3d

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1220, 1223–24 (9th Cir. 2000) (citing Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship,

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507 U.S. 380, 395 (1993)). The determination of whether neglect is excusable is ultimately an

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equitable one, taking account of all relevant circumstances surrounding the party's omission. See

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Pioneer, 507 U.S. at 395. This equitable determination is left to the discretion of the district

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court. See Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004).

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discovery plan and scheduling order are untimely and that Plaintiff has not shown good cause or

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excusable neglect. Both motions will therefore be denied. The motion to amend the complaint

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was filed more than three months late under the discovery plan and scheduling order that the

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parties agreed upon after Plaintiff was given leave to amend the complaint to add Wal-Mart as a

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Defendant. Plaintiff has had more than sufficient time to conduct the discovery he needed to

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learn the identity of the manufacturer of the ice cream.

The court finds that both the motion to amend the complaint and the motion to amend the

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The court has reviewed the discovery requests and other exhibits attached to the motion

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to amend and motion to modify the scheduling order which Plaintiff submitted to support his

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arguments that Wal-Mart denied him meaningful discovery. The first set of discovery requests

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were served August 4, 2014, and asked information about bar codes and machines used in

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making ice cream.

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responded to the interrogatories clearly stating that it does not manufacture Great Value ice

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cream, did not create the bar codes that the Plaintiff referred to, and had no information on the

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machinery used in the manufacturer’s operation. The requests did not ask Wal-Mart who

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manufactured the ice cream he purchased on the date he was injured.

The interrogatories were difficult to understand.

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However, Wal-Mart

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Pursuant to Rule 33, Wal-Mart had 30 days from service of the discovery requests to

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respond and timely responded. Plaintiff served a second set of interrogatories on Wal-Mart on

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September 10, 2014. Interrogatory No. 2 requested the name, address and telephone number of

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the company responsible for manufacturing Great Value ice cream delivered to the Wal-Mart

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store for the time period between November 1, 2010, and February 10, 2011. Wal-Mart timely

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served its answers to the second set of interrogatories on October 8, 2014, and identified Wells

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Enterprises, Inc., d/b/a/ Wells Dairy as the manufacturer of the ice cream and provided the

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address and telephone number as requested.

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Additionally, counsel for Wal-Mart is correct that Wells Enterprises, Inc. was identified

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in Wal-Mart’s certificate of interested parties on July 31, 2014. See Amended Certificate of

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Interested Parties (Dkt. #57).

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statement that he had never heard of Wells until Wal-Mart responded to his second set of

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interrogatories.

Plaintiff was served with the certificate which contradicts his

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The court held a hearing on August 12, 2014, after Plaintiff was granted leave to amend

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his complaint to add Wal-Mart as a Defendant. The court heard oral arguments on Plaintiff’s

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Motion for Oral Arguments (Dkt. #52) and Motion for Sanctions (Dkt. #53). At that time,

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Plaintiff was seeking sanctions against Wal-Mart for prematurely asserting an affirmative

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defense in the answer to the second amended complaint without citation to authority. At the

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hearing, the court reminded the parties of the deadlines established by the court’s Discovery Plan

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and Scheduling Order (Dkt. #60).

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The certificate of service indicates that Wal-Mart’s discovery responses which identify

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Wells Enterprises, Inc. as the manufacturer of the ice cream were served by mail on October 8,

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2014. If so, the responses would have been received shortly before the deadline for filing a

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motion to amend the complaint. Plaintiff does not explain why he waited until September 10,

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2014, to serve Wal-Mart with the discovery request to identify the manufacturer of the ice cream.

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Plaintiff also does not explain why he waited more than three months after receiving Wal-Mart’s

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answers to the interrogatory identifying Wells as the manufacturer to file his motion to amend

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the complaint. Granting the motion to amend and modify the discovery plan and scheduling
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order to allow adding Wells as a Defendant at this late date would further delay resolution of this

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case. Discovery would have to be reopened for the second time. Additionally, further delay

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would prejudice Wal-Mart which has complied with the court’s deadlines and timely filed a

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motion for summary judgment on February 9, 2015, the same day Plaintiff filed his motion to

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modify the scheduling order.

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The motion to amend the complaint also does not comply with the requirements of LR

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15-1 which requires a party moving to amend a pleading to attach the proposed amended

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pleading to any motion to amend. The district judge earlier denied Plaintiff’s motion to amend

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the complaint to add Safeway as a Defendant. That motion was filed January 13, 2014 (Dkt.

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#22), at the same time that the Plaintiff was seeking to add Wal-Mart as a Defendant. In her

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Order (Dkt. #38), the district judge noted that the court previously dismissed Plaintiff’s claims

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against Safeway in the amended complaint for failing to state a claim because he did not allege

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any facts about Safeway or its citizenship. Here, Plaintiff has not complied with the requirement

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of LR 15-1 which requires attachment of a proposed amended pleading. The motion to add

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Wells enterprises as a Defendant alleges only that it is an Iowa corporation and “liable as the

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manufacture [sic] of the defective product.”

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“A scheduling order is not a frivolous piece of paper, idly entered, which can be

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cavalierly disregarded by counsel without peril.” Johnson v. Mammoth Recreations, 975 F.2d at

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610 (internal citation omitted). Requiring compliance with a scheduling order does not “simply

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exalt procedural technicalities over the merits.” Id. As the Ninth Circuit has recognized,

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disregarding the scheduling order undermines the court’s ability to control its docket, disrupts the

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agreed upon course of litigation, and rewards the indolent and cavalier. Id. Additionally, Rule

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16 may not be short circuited by an appeal to the liberal amendment standards of Rule 15. Id.

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The court finds that Plaintiff has not met his burden establishing good cause or excusable

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neglect for failing to file the motion to amend more than three months after the deadline

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established by the stipulated discovery plan and scheduling order. Wal-Mart disclosed the

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identity of Wells Enterprises in its Certificate of Interested Parties on July 31, 2014. Plaintiff has

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no explanation at all why he did not simply ask Wal-Mart who the manufacturer was in his first
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discovery requests. As the Plaintiff has not met his burden, “the inquiry should end” and the

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court need not consider whether amendment is proper under Rule 15. See Colman, 232 F.3d at

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1275 (citing Johnson, 975 F.2d at 609); Fed. R. Civ. P. 16(b). Wal-Mart filed a timely motion

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for summary judgment after the close of discovery and would be prejudiced by the additional

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time and expense of reopening discovery at this late date. Finally, Plaintiff has not complied

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with LR15-1 which requires a party moving to amend the complaint to attach the proposed

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amended pleading to the motion.

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For all of these reasons,

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IT IS ORDERED that:

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1. Plaintiff’s Motion to Add Wells Enterprises, Inc. as a Defendant in this Matter (Dkt.
#62) is DENIED.

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2. Plaintiff’s Motion to Modify Scheduling Order (Dkt. #66) is DENIED.

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DATED this 4th day of March, 2015.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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