Wortman v. Boeing Company

Filing 39

OPINION and ORDER - Plaintiff's Motion 30 for Enlargement of Time to File a Motion to Amend the Complaint is DENIED. IT IS SO ORDERED. DATED this 16th day of May, 2016, by United States Magistrate Judge John V. Acosta. (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

SIDNEY WORTMAN,

3: l 5-cv-1735-AC
Plaintiff,

OPINION AND ORDER

v.
THE BOEING COMPANY,

Defendant.
ACOSTA, Magistrate Judge:
Introduction

Plaintiff seeks a 14-day extension of the May 9, 2016, dispositive motion deadline,
ultimately to allow him to file an amended complaint.

Because amending his complaint is

untimely and prejudices the Defendant, and because he has not shown good cause to allow an
extension of time for that purpose, Plaintiffs motion (ECF No. 30) is denied.
Background

Plaintiff filed this lawsuit on September 11, 2015, alleging a single claim for relief for
violation of ERISA. Plaintiff contends defendant improperly calculated his retirement benefit
and thus failed to pay him the proper monthly pension payment after he retired in August 2014.
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Plaintiffs six-page complaint contains no other claims for relief, and contains no fact
contentions beyond those which describe Defendant's allegedly erroneous calculation of his
retirement payment.
On the same day that Plaintiff filed his lawsuit the court set an initial close-of-discovery
date of January 11, 2016. (ECF No. 2.) On December 23, 2015, the parties filed a stipulated
motion (ECF No. 19) for an order modifying the initial pretrial schedule. The parties proposed
to extend the date for the close of discovery to February 23, 2016, and the date for filing
dispositive motions to April 22, 2016. During a Janumy 5, 2016 scheduling conference the court
granted (ECF No. 21) the parties' stipulated motion.

Thereafter, neither pmiy sought an

extension of the Februmy 23, 2016 discovery close deadline.
On April 22, 2016, Plaintiff filed an unopposed motion (ECF No. 26) for an extension of
time to file dispositive motions, which motion the court granted (ECF No. 27) on April 25, 2016.
On May 5, 2016, Plaintiff filed a second unopposed motion (ECF No. 28) again requesting an
extension of the dispositive motion deadline. On May 6, 2016, the comi granted (ECF No. 29)
Plaintiffs second extension request and extended the deadline for filing dispositive motions to
May 9, 2016. In neither of Plaintiffs motions did he seek an extension of any other deadline,
ask for leave to amend his complaint, or suggest that his extension request was intended for any
purpose other than to extend the dispositive motion deadline. At no time did Plaintiff file a
separate motion to amend his complaint
Defendant filed its summary judgment motion (ECF No. 32) on May 9, 2016, but
Plaintiff did not file a surnmmy judgment motion. Instead, Plaintiff filed a motion (ECF No. 30)

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for an "enlargement of time to file a motion to amend its complaint." Plaintiffs third motion
differed from his previous two because it sought a "continuance" of the dispositive motion
deadline to allow Plaintiff to file an amended complaint "to make more clear his claims,
including his claim for Breach of Fiduciary Duty." (ECF No. 30, at 1, 2.) In his supporting
declaration Plaintiffs counsel stated that in conferring with Defendant's counsel, he told
Defendant's counsel of Plaintiffs "intention to seek Summary Judgment on its claims, including
on Breach of Fiducimy Grounds." (ECF No. 31, at 1.) Defendant's counsel responded that
Defendant would move against any breach of fiduciary duty claim because "such claims were
not raised in Plaintiffs Complaint." (ECF Nos. 30, at 1-2; 31, at 2.)

Standard
I. Scheduling Orders Under Rule 16.

Rule 16 states, in relevant part, that "[a] schedule may be modified only for good cause
and with the judge's consent." FED. R. Crv. P. 16(b)(4). This district's local rules frnther
provide that "objections to any court-imposed deadline must be raised by motion and must: (1)
Show good cause why the deadlines should be modified[;] (2) Show effective prior use of time;
(3) Recommend a new date for the deadline in question[; and] (4) Show the impact of the
proposed extension upon other existing deadlines, settings, or schedules." District of Oregon,
Local Rules of Civil Practice ("LR") 16-3(a) (2016) See also Reitz v. Adams, et al., 3:13-cv02025-AC, 2015 WL 1346127, at *3 (D. Or. Mm·ch 23, 2015) (applying LR 16-3(a) to plaintiffs
motion to retroactively extend the service of process deadline). "A party seeking to amend a
pleading after a scheduling order has been entered pursuant to Federal Rule of Civil Procedure

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16(b) must first show 'good cause' for amending the scheduling order before the court considers
whether the amendment satisfies the requirements of Rule 15(a)." Ashby v. Farmers Ins. Co.,
2007 U.S. Dist. LEXIS 97502, at *4, 2007 WL 5479070 (D. Or. Sept. 26, 2007) (citing Johnson

v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992)). The primary factor in
determining whether good cause exists is whether the party seeking amendment was diligent in
pursuing the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d at 609. If the party
who seeks modification of the scheduling order did not act diligently in doing so, "the inquiry
should end," and the motion should be denied. Id.
II. Amendments to Pleadings Under Rule 15.
Federal Rule of Civil Procedure 15 governs amendments to pleadings, and states, in
relevant patt, that where a patty already has been served with a responsive pleading, "a patty
may ainend its pleading only with the opposing patty's written consent or the court's leave. The
court should freely give leave when justice so requires." FED. R. Crv. P. 15(a)(l)-(2) (2007).
"Although the rule should be interpreted with 'extreme liberality,' leave to amend should not be
granted automatically."

Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990)

(quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). A trial court may deny the
motion if permitting ainendment would prejudice the opposing patty, produce an undue delay in
litigation, result in futility for lack of merit, is sought by plaintiffs in bad faith or with a dilatory
motive, or the plaintiffs have filed numerous amended complaints. Farnan v. Davis, 371 U.S.
178, 182 (1962); AmerisourceBergen Co. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir.
2006). Prejudice to the opposing party carries the "greatest weight" in determining whether to

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deny leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.
2003). Whether to grant leave to amend lies within the sound discretion of the trial coUli. Webb,
655 F.2d at 979.

In exercising this discretion, however, the court "must be guided by the

underlying pUl'pose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or
technicalities." Id.
Discussion

Plaintiffs motion presents two procedural issues for the court to resolve. First, the court
must determine whether to permit an extension of its previous scheduling orders which set and
then extended, among other deadlines, the date by which the parties were to file dispositive
motions.

Second, the court must decide whether Plaintiff should be allowed to amend his

complaint.
Preliminary Procedural Matter

As an initial matter, Plaintiffs motion seeks a "continuance" of the dispositive motion
deadline but not for the pUl'pose of gaining extra time to file a dispositive motion. Instead, he
seeks an extension of that deadline, set pursuant to the court's authority under Rule 16, to allow
him to amend his complaint, but he has not filed a motion to amend his complaint or submitted
for review the proposed complaint he would file if the coUlt granted him leave to do so.
Although Plaintiff has not filed a formal motion seeking leave to amend his complaint, the
pmpose for which he seeks an extension necessarily requires the coUlt to address that question.
Thus, the court addresses both the scheduling extension request and the Plaintiffs proposal to
amend his complaint.

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I. Extension of the Scheduling Order.

Plaintiff fails to show good cause for his request to extend the court's operative
scheduling order, and also fails to demonstrate that he made effective prior use of the time
allowed under the court's previous scheduling orders. First, Plaintiff previously sought and
obtained two extensions of the dispositive motion deadline, and his current motion for a third
extension fails to directly explain why he could not have filed his dispositive motion by the May
9 deadline. He offers no description of his effo1is to use the time before May 9 to prepare a
dispositive motion or even that he in the process of doing so. Second, Plaintiff offers no good
cause to support his request to extend the dispositive motion deadline. He cites no inability to
obtain evidence to support his dispositive motion, makes no claim that additional time is needed
to incorporate into his motion newly discovered facts, and lists no unforeseen circumstances that
have prevented him from preparing a dispositive motion by the May 9 deadline.
The only reason Plaintiff cites to support his extension request is an intent to seek
summary judgment on a claim for relief not contained in his current complaint. He does not
explain, however, why he could not have prepared his dispositive motion on his ERISA violation
claim by the May 9 deadline. As imp01iantly, he provides no compelling reason to explain his
failure prior to May 9 to seek a modification of the court's scheduling order to accommodate the
filing of an amended complaint and, in turn, a commensurate adjustment of the dispositive
motion deadline.
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In sum, Plaintiff fails to carry his burden under Rule 16(b)(4) and LR 16-3(a) to show
that the court should modify the court's prior scheduling order. Accordingly, Plaintiffs motion
for an enlargement of time is denied.
IL Amendment of the Complaint.
Having found no good cause for a modification of the court's scheduling order, the court
need not address Plaintiffs request to amend his complaint. Nonetheless, the court addresses
that issue to ensure a clear record and avoid subsequent and duplicative motion practice
regarding a proposed amended complaint.
The starting point for the court's analysis is the absence of a motion for leave to amend
Plaintiffs complaint. Without a formal motion accompanied by the required proposed amended
complaint, the court cannot decide - or even consider - whether to allow Plaintiff to amend his
complaint. See LR 15-l(d)(l) (providing "[a] copy of the proposed amended pleading must be
attached as an exhibit to any motion for leave to file the amended pleading."). For this reason,
the cou1t declines to consider Plaintiffs request to amend his complaint.
Even if Plaintiff had filed a formal motion to amend his complaint, the court would deny
it as both untimely and prejudicial. Regarding untimeliness, Plaintiff filed his complaint on
September 11, 2015, and at no time thereafter and before the May 9, 2016, dispositive motion
deadline did he seek leave to amend his complaint. The initial Janumy 11, 2016 and extended
Febmaty 23, 2016 discove1y close dates, as well as the initial April 22, 2016 and extended May
5, 2016 dispositive motion deadlines passed, but plaintiff waited until the third dispositive
motion deadline on May 9 to raise the prospect of amending his complaint. Even then, he filed

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no formal motion seeking leave to amend. Plaintiffs current motion contains no explanation
why he could not have sought leave to amend earlier.
Prejudice to the opposing party carries the "greatest weight" in determining whether to
deny leave to amend, Eminence Capital, LLC, 316 F.3d at 1052, and prejudice is clearly present
here. First, Defendant has completed its discovery on Plaintiffs ERIS A violation claim, the
only claim contained in his complaint, and discovery. Discovery has been closed since February
22, 2016, two and one-half months before Plaintiffs request to amend his complaint. In that
request Plaintiff represents he would add a claim under ERISA for breach of fiducimy duty, and
two common-law claims for estoppel and breach of contract - claims Plaintiffs counsel
acknowledged would require discovery outside the administrative record. (ECF 38-1, at 2, 7-9.)
But discovery is closed and if reopened, Defendant would incur additional cost from duplication
of previously taken discovery and a delay of undetermined length in obtaining a ruling on its
summary judgment motion.
Second, Defendant has filed its sumrnmy judgment motion, which creates a significant
advantage for Plaintiff were he allowed to amend his complaint and reopen discove1y. Plaintiff
has suggested he would plead additional theories of liability, which if allowed would permit him
to plead around the deficiencies in his existing claims that Defendant has identified in its
summmy judgment motion. In addition, Plaintiff would be able to fashion his proposed new
claims and conduct discovery on those claims to avoid the arguments Defendant raises in its
sumrnmy judgment motion, as well as preempt the anticipated arguments against his new claims
that Defendant's current motion suggest.

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Third, Plaintiff offers no explanation for delaying until now presenting the new claims
for relief he proposes to add to his complaint. His statement to Defendant's counsel during their
confe1Tal that "the facts underlying [the new] claims are the same as the facts underlying his
claim for benefits" (ECF No. 38-1, at 2), demonstrates that his new claims likely are not the
product of newly discovered facts but of newly conceived legal theories. Plaintiff offers no
reason to explain why he could not have asserted any of the new theories before now.
In short, Plaintiff has delayed too long seeking to amend his complaint and that delay,
combined with the passage of the discove1y close date and the summary judgment deadline,
result is significant prejudice to the Defendant.
Conclusion

Plaintiffs Motion (ECF No. 30) for Enlargement of Time to File a Motion to Amend Its
Complaint is DENIED.
IT IS SO ORDERED.

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JOHN v. AcosTA
United States Magistrate Judge

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