Pelletier v. Rodriguez et al

Filing 192

ORDER - Plaintiff's Objection (ECF No. 188 ) is overruled. The Report and Recommendation of U.S. Magistrate Judge Elayna J. Youchah (ECF No. 187 ) is accepted and adopted in its entirety. Plaintiff's Motion for Leave to file a Second Amended Complaint adding new Defendants (ECF No. 163 ) is denied. Signed by Chief Judge Miranda M. Du on 2/17/2021. (Copies have been distributed pursuant to the NEF - AB)

Case 3:17-cv-00642-MMD-EJY Document 192 Filed 02/17/21 Page 1 of 8

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GAETAN PELLETIER,

Case No. 3:17-cv-00642-MMD-EJY
Plaintiff,

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ORDER

v.
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WILLIAM V. RODRIGUEZ, et al.,
Defendants.

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I.

SUMMARY

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Pro se Plaintiff Gaetan Pelletier brings this breach of contract action against

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Defendants William V. Rodriguez and Judy A. Rodriguez, as trustees and in their individual

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capacities, and the William V. Rodriguez Revocable Living Trust, concerning the sale of

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land from Defendants to Plaintiff.1 (ECF No. 1.) Before the Court is a Report and

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Recommendation (“R&R”) of U.S. Magistrate Elayna J. Youchah (ECF No. 187),

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recommending the Court deny Plaintiff’s motion to for leave to file a second amended

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complaint (ECF No. 163) to add new defendants and claims. Plaintiff filed an objection to

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the R&R. (ECF No. 188 (“Objection”).) Because the Court agrees with Judge Youchah’s

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analysis. the Court will accept the R&R in its entirety.

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II.

BACKGROUND

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Plaintiff initiated this action on September 5, 2017. (ECF No. 1.) After amending his

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complaint as a matter of right (ECF No. 23) and the case proceeded into discovery, the

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parties attended a case management conference with U.S. Magistrate Judge Carla M.

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Baldwin on May 9, 2019. (ECF No. 94.) Plaintiff requested that the deadline to add parties

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other Defendants—Robert J. Wines, James W. Middagh, and Mortensen
Partners, LP—have already been dismissed from this action. (ECF Nos. 78, 159.)

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and claims be March 31, 2020 (ECF No. 91), but Judge Baldwin set July 1, 2019 as the

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deadline to amend pleadings and/or add parties (ECF No. 94). At Plaintiff’s request, Judge

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Baldwin extended the deadline to August 19, 2019. (ECF No. 101.)

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On December 4, 2019, more than three months after the extended deadline,

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Plaintiff moved for leave to file an amended complaint with additional named parties Paul

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Bottari and Michael Rodriguez (“M. Rodriguez”). (ECF Nos. 106 (“December 2019

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Motion”).) Plaintiff subsequently filed a motion to modify the case management schedule

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to permit him to add new parties after the deadline had passed. (ECF No. 110.) Judge

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Baldwin denied Plaintiff’s motion for leave to file a second amended complaint because

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Plaintiff had failed to comply with Local Rule 15-1 by not attaching his proposed second

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amended complaint. (ECF No. 120 at 3.) Judge Baldwin expressly directed Plaintiff not to

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file until after written discovery and depositions have been completed. (Id.) Further, Judge

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Baldwin denied Plaintiff’s motion to modify the schedule as moot. (Id.)

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Plaintiff refiled his motion with the proper attachments on April 14, 2020 (ECF No.

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127 (“April 2020 Motion”)), but withdrew the motion at Judge Baldwin’s direction in June

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so that the scheduled settlement conference could proceed. (ECF No. 150 at 2.) The

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settlement conference proceeded on June 29, 2020 (ECF No. 151), and resulted in a

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settlement between Plaintiff and Defendants Middagh and Mortensen Partners (ECF Nos.

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157, 159). Three weeks after that settlement was finalized, Plaintiff again filed a motion

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for leave to file a second amended complaint to add Bottari and M. Rodriguez as

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defendants, in addition to adding a new claim for civil conspiracy against the existing and

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putative defendants. (ECF No. 163 (“August 2020 Motion”).)

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United States Magistrate Judge Elayna J. Youchah2 issued a Report and

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Recommendation (“R&R”), advising that the Court deny Plaintiff’s August 2020 Motion.

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(ECF No. 187.) Plaintiff filed a response disagreeing with Judge Youchah’s findings, which

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Baldwin recused herself from this matter on August 14, 2020, and Judge
Youchah was randomly reassigned as the magistrate judge. (ECF No. 161.)
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the Court will construe as an objection to the R&R (ECF No. 188), and Defendant

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responded to Plaintiff’s Objection. (ECF No. 189.)

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III.

LEGAL STANDARD

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the Court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” Id. The Court’s review is thus de novo

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because Plaintiff filed his Objection. (ECF No. 188.)

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IV.

DISCUSSION

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Plaintiff seeks to add Bottari and M. Rodriguez as defendants. (ECF Nos. 127, 127-

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1.) The scheduling order in this case was entered on June 28, 2019 (ECF Nos. 99, 101),

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and the deadline to add parties or claims was August 19, 2019 (ECF No. 101). Discovery

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closed on May 1, 2020. (ECF No. 99.) Because Plaintiff is seeking now to add parties after

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the Court has entered a scheduling order, Federal Rule of Civil Procedure 16(b)(4)’s “good

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cause” standard for modifying a scheduling order applies, not Rule 15(a)(2)’s more lenient

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amendment standard. The ‘good cause’ standard of Rule 16(b) “primarily considers the

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diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc.,

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975 F.2d 604, 609 (9th Cir. 1992). While the Court may consider prejudice to the

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nonmoving party as additional reasons to deny a motion, “the focus of the inquiry is upon

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the moving party’s reasons for seeking modification. Id.

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Moreover, when a party requests to modify the pretrial scheduling order after the

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expiration of a relevant deadline, the request must be accompanied by a showing of

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excusable neglect. See LR IA 6-1(b); see also LR 26-3. When evaluating whether a party’s

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neglect was excusable, the Court considers the four ‘Pioneer factors’: “(1) the danger of

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prejudice to the non-moving party; (2) the length of the delay and the impact on the

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proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.”

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Mendoza v. Amalgamated Transit Union, Int’l, Case No. 2:18-cv-00959-JCM-CWH, 2019
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WL 9100188, at *4 (D. Nev. Jun. 24, 2019) (citing Bateman v. U.S. Postal Serv., 231 F.3d

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1220, 1223-24 (9th Cir. 2000)). The determination of whether neglect is excusable is

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ultimately an equitable one, taking account of all relevant circumstances surrounding the

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party’s omission.” Chem. Bank v. Star Dev. & Holding, LLC, Case No. 2:16-cv-01523-

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MMD-PAL, 2017 WL 5587516, at *3 (D. Nev. Nov. 17, 2017) (citing Pioneer Inv. Servs.

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Co v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993)).

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As explained further below, Plaintiff has not demonstrated good cause, so the

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motion for leave to file a second amended complaint will be denied. But even if Plaintiff

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had demonstrated good cause, Plaintiff’s first motion for leave to file, the December 2019

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Motion, was filed after the deadline to add new parties per the scheduling order. Because

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Plaintiff has likewise failed to demonstrate excusable neglect, the Court will deny the

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Motion for Leave to File.

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A.

Good Cause

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Plaintiff raises two arguments in support of his claim that good cause exists that

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justifies modifying the scheduling order at this late time. First, Plaintiff argues Judge

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Baldwin has already found good cause. Second, Plaintiff alleges that when the Court

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previously dismissed his motion for leave to amend, the Court also granted him leave to

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refile his motion at a later time. Both arguments are insufficient to show good cause.

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Plaintiff repeatedly cites to Magistrate Judge Baldwin’s order disposing of several

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discovery motions (ECF No. 120), in which she prefaces her rulings with “good cause

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appearing,” to argue that the Court has already established a showing of good cause.

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(ECF No. 188 at 4, 5, 7.) Although the Court recognizes Plaintiff’s possible confusion, this

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language is not applicable to the issue presently before the Court. In her February 7, 2020

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order, Judge Baldwin found good cause to deny Plaintiff’s motion to add parties because

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Plaintiff failed to attach the proposed second amended complaint. (ECF No. 120 at 3.) But

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she did not then find that Plaintiff had demonstrated good cause under Rule 16(b) at that

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hearing. Accordingly, this language does not advance Plaintiff’s argument that he has

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established good cause to modify the schedule.
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Indeed, the Court has not yet ruled on whether Plaintiff’s motion for leave to file is

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supported by good cause. Plaintiff argues that Judge Baldwin’s order clearly permitted him

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“to proceed with his motion to leave and amend his complaint to add parties provided

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plaintiff followed the court’s instructions.” (ECF No. 188 at 5.) In particular, Plaintiff cites

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Judge Baldwin’s order allowing Plaintiff “to refile at the proper time, if necessary.” (ECF

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No. 120 at 3.) But that ruling only allowed Plaintiff to refile his motion for leave to amend—

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it did not grant him leave to file a second amended complaint. (Id.) Whenever Plaintiff

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properly refiled a motion for leave to file a second amended complaint, the magistrate

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judge assigned to the case would still have had to analyze whether the motion for leave

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to file should be granted, as Judge Youchah did in her R&R. Ultimately, Judge Baldwin’s

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February 7th order does not help Plaintiff to demonstrate good cause.

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Instead, the Court must consider whether Plaintiff was sufficiently diligent such that

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he should be permitted to add new defendants after discovery has closed. Although the

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Court acknowledges that Plaintiff has put considerable effort into prosecuting this case

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over the last three and a half years, he has ultimately failed to demonstrate good cause

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for not adding the proposed defendants earlier in the litigation. There is no dispute that

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Plaintiff knew about the parties and the theories of liability far in advance of filing his

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Amended Complaint. (ECF No. 187 at 6.) Plaintiff knew of Bottari’s identity and role when

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he filed his original Complaint. (ECF No. 1 at 6 (identifying “Paul Bottari” as the listing

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broker).) Further, although Plaintiff may not have known M. Rodriguez’s identity at the time

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of filing, he was then aware that “some [of the cattle] were sold and others belonged to

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Mr. Rodriguez’s son.” (ECF No. 1 at 7.) In the December 2019 Motion, Plaintiff’s sole

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explanation for declining to add Bottari and M. Rodriguez earlier in the litigation was that

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“[t]he activities of these additional parties have been revealed more clearly in Plaintiff’s

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most recent discovery responses and were merely suspected prior to recent discovery.”

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(ECF No. 106 at 2.) Plaintiff offers no further explanation for why the December 2019

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Motion is three months past the deadline and had not communicated with the Court about

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requesting an additional extension. The Court therefore agrees with Judge Youchah’s
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reasoning that because “Plaintiff has been aware of the ‘facts and theories supporting

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amendment’ as well as the ‘names and roles’ of the proposed defendants for months if not

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years before seeking amendment of the Amended Complaint,” and, as a result, Plaintiff

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failed to demonstrate good cause for amendment under Rule 16(b). (ECF No. 187 at 7.)

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B.

Excusable Neglect

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The Court could deny Plaintiff’s Motion on the good cause ground alone. But even

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if Plaintiff could show good cause, he has also failed to demonstrate excusable neglect.

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After weighing the Pioneer factors, the Court cannot find that Plaintiff has demonstrated

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his failure to timely seek amendment was the result of excusable neglect. See 507 U.S. at

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395. Although the Court finds that Plaintiff acted in good faith, the other three factors—

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length of delay and its potential impact on the proceedings, lack of clear reason for the

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delay, and potential prejudice to the nonmoving party—ultimately outweigh Plaintiff’s

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efforts. See Chem. Bank, 2017 WL 5587516 at *3.

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Although Plaintiff will clearly be prejudiced if he is not permitted to add Defendants

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Bottari and M. Rodriguez, Defendants would also be significantly prejudiced. At the time

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Plaintiff filed the August 2020 Motion, discovery had been closed for more than three

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months. See Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir.

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1999) (finding that the “need to reopen discovery” and the ensuing delay of proceedings

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“supports a district court’s finding of prejudice from a delayed motion to amend the

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complaint”). Moreover, Plaintiff’s proposed second amended complaint would not only add

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defendants, but includes a new claim for civil conspiracy against the existing defendants

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as well. (ECF No. 163-1 at 23.) While it is unclear whether Plaintiff could seek redress

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against Bottari and M. Rodriguez in a subsequent lawsuit,3 ultimately the prejudice to

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Defendants at least equals Plaintiff’s and does not weigh in favor of excusing Plaintiff’s

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neglect.

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The length of delay and the potential impact on allowing amendment at this late

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is unclear which statute of limitations Plaintiff is referring to when he alleges that
future claims would be barred by a Nevada state statute of limitation.
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stage weigh even more strongly against permitting Plaintiff to amend. The Court

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acknowledges that Plaintiff has not slept on his rights and has attempted to amend his

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Complaint several times. (ECF Nos. 106, 127, 163.) But even if Plaintiff had properly

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attached his proposed second amended complaint to his December 2019 Motion (ECF

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No. 106), that motion was filed more than three months after the stipulated extended

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deadline to add new parties. In similar cases, the Court has found three months’ delay

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without any justification inexcusable neglect. See, e.g., Edwards v. Conn Appliances, Inc.,

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Case No. 2:18-cv-01998-APG-BNW, 2020 WL 6126276, at *2 (D. Nev. Sept. 30, 2020)

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(denying plaintiff’s motion to amend after the scheduling order deadline had passed when

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she failed to explain why she waited seven weeks after the time she allegedly learned

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requisite new information); Wilson v. Wal-Mart Stores, Inc., Case No. 2:13-cv-00207-RFB-

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PAL, 2015 WL 926959, at *5 (D. Nev. Mar. 4, 2015) (finding plaintiff had not met his burden

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of establishing good cause or excusable neglect when he failed to file the motion to amend

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more than three months after the deadline established by the discovery plan).

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Finally, as explained above, Plaintiff offers no excuse for disregarding the August

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19, 2019 deadline, in either the instant August 2020 Motion or his prior December 2019

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Motion. While the Court acknowledges that Plaintiff is proceeding pro se, a pro se litigant

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is still “bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995)

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(internal citation omitted). Even considering the matter equitably, the Court cannot ignore

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that Plaintiff was the one to request the August 19, 2019 deadline because it would be 30

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days after the scheduled depositions that would enable him to “ascertain the potential and

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culpability of other parties.” (ECF No. 97 at 1-2.) Plaintiff then disregarded the deadline he

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himself proposed, did not again contact the Court for an extension, and never gave a

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reason for so doing.

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In sum, Plaintiff does not show that his delay was the result of excusable neglect.

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Moreover, he has failed to demonstrate good cause for allowing a modification of the

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briefing schedule. Accordingly, the Court will adopt Judge Youchah’s R&R in full (ECF No.

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187), and will deny Plaintiff’s August 2020 Motion (ECF No. 163).
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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the issues before

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the Court.

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It is therefore ordered that Plaintiff’s objection (ECF No. 188) to the Report and

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Recommendation of U.S. Magistrate Judge Elayna J. Youchah is overruled. The Report

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and Recommendation of U.S. Magistrate Judge Elayna J. Youchah (ECF No. 187) is

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accepted and adopted in its entirety.

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It is further ordered that Plaintiff’s motion for leave to file a second amended
complaint adding new defendants (ECF No. 163) is denied.
DATED THIS 17th Day of February 2021.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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