8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 THERESA BROOKE, Case No. 1:20-cv-00102-SAB
12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO FILE FIRST AMENDED 13 v. COMPLAINT AND VACATING JULY 8, 2020 HEARING 14 RIVER PARK HOSPITALITY, INC., (ECF Nos. 14, 15) 15 Defendant. THREE DAY DEADLINE 16 17 Theresa Brooke (“Plaintiff”) filed this civil rights action pursuant to 42 U.S.C. § 1983. 18 Currently before the Court is Plaintiff’s unopposed motion for leave to file an amended 19 complaint. The Court, having reviewed the record, finds this matter suitable for decision without 20 oral argument. See Local Rule 230(g). Accordingly, the previously scheduled hearing set on 21 July 8, 2020 will be vacated and the parties will not be required to appear at that time. Having 22 considered the moving papers, Defendant’s statement of non-opposition, as well as the Court’s 23 file, the Court issues the following order granting Plaintiff’s motion for leave to amend. 24 I. 25 BACKGROUND 26 On January 20, 2020, Plaintiff filed this action bringing claims under the Americans with 27 Disabilities Act and the California Unruh Civil Rights Act. (ECF No. 1.) On April 30, 2020, a scheduling order issued setting the pretrial and trial dates in this action. (ECF No. 13.) Pursuant 1 to the scheduling order, any motion or stipulation for leave to amend the complaint was to be 2 filed by May 15, 2020. (Id. at 2.)1 On June 9, 2020, Plaintiff filed a motion for leave to file a 3 first amended complaint. (Pl.’s Mot. Amend (“Mot”), ECF No. 14.) On June 22, 2020, 4 Defendant filed a statement of non-opposition notifying the Court that Defendant does not 5 oppose Plaintiff’s motion for leave to file a first amended complaint. (ECF No. 15.) 6 II. 7 LEGAL STANDARD 8 Once a district court has entered a pretrial scheduling order pursuant to Federal Rule of 9 Civil Procedure 16 setting a deadline for amending pleadings, the district court is to first apply 10 Rule 16’s standard for amending the scheduling order if the deadline to amend has passed. 11 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992); United States ex 12 rel. Terry v. Wasatch Advantage Grp., LLC, 327 F.R.D. 395, 403 (E.D. Cal. 2018). If the party 13 seeking amendment can satisfy the good cause standard of Rule 16(b), the district court then 14 must determine whether the moving party has satisfied the requirements of Rule 15(a). Wasatch, 15 327 F.R.D. at 403-04. 16 A. The Rule 16(b) Good Cause Standard 17 Federal Rule of Civil Procedure 16(b) provides that the district court must issue a 18 scheduling order that limits “the time to join other parties, amend the pleadings, complete 19 discovery, and file motions.” Fed. R. Civ. P. 16(b)(1)–(3). A scheduling order “may be 20 modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The 21 “good cause” standard “primarily considers the diligence of the party seeking the amendment.” 22 Mammoth Recreations, 975 F.2d at 609. To establish good cause, the party seeking the 23 modification of a scheduling order must generally show that even with the exercise of due 24 diligence, they cannot meet the requirement of that order. Id. The prejudice to other parties, if 25 any, may be considered, but the focus is on the moving party’s reason for seeking the 26 modification. Id. If the party seeking to amend the scheduling order fails to show due diligence, 27 1 All references herein to pagination of electronically filed documents pertain to those as indicated on the upper 1 the inquiry should end and the court should not grant the motion to modify. Zivkovic v. 2 Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Mammoth 3 Recreations, 975 F.2d at 609). “Relevant inquiries [into diligence] include: whether the movant 4 was diligent in helping the court to create a workable Rule 16 order; whether matters that were 5 not, and could not have been, foreseeable at the time of the scheduling conference caused the 6 need for amendment; and whether the movant was diligent in seeking amendment once the need 7 to amend became apparent.” Wasatch, 327 F.R.D. at 404 (internal quotation marks and citation 8 omitted) (alteration in original). 9 B. The Rule 15 Standard for Amending Pleadings 10 If Plaintiff can meet the good cause standard to modify the scheduling order under Rule 11 16, Plaintiff must then satisfy the standards under Federal Rule of Civil Procedure 15(a). 12 Wasatch, 327 F.R.D. at 403-04. Twenty-one days after a responsive pleading or a motion to 13 dismiss is filed, a party may amend only by leave of the court or by written consent of the 14 adverse party. Fed. R. Civ. P. 15(a)(1)-(2). “Rule 15(a) is very liberal and leave to amend ‘shall 15 be freely given when justice so requires.’ ” Amerisource Bergen Corp. v. Dialysis West, Inc., 16 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)); see also Eminence Capital, 17 LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (noting leave should be granted with 18 “extreme liberality”) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th 19 Cir.2001)). Leave to amend under Rule 15 is “within the sound discretion of the trial court,” and 20 “[i]n exercising this discretion, a court must be guided by the underlying purpose of Rule 15 to 21 facilitate decision on the merits, rather than on the pleadings or technicalities.” United States v. 22 Webb, 655 F.2d 977, 979 (9th Cir. 1981). 23 In determining whether to grant leave to amend, a court is to consider five factors: “(1) 24 bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) 25 whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 26 808 (9th Cir. 2004). The factors are not weighed equally. “Futility of amendment can, by itself, 27 justify the denial of a motion for leave to amend.” Bonin, 59 F.3d at 845. Undue delay, “by 1 (quotation marks omitted) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)). 2 “[I]t is the consideration of prejudice to the opposing party that carries the greatest weight.” 3 Eminence Capital, 316 F.3d at 1052. “Absent prejudice, or a strong showing of any of the 4 remaining [ ] factors, there exists a presumption under Rule 15(a) in favor of granting leave to 5 amend.” Id. 6 III.
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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 THERESA BROOKE, Case No. 1:20-cv-00102-SAB
12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO FILE FIRST AMENDED 13 v. COMPLAINT AND VACATING JULY 8, 2020 HEARING 14 RIVER PARK HOSPITALITY, INC., (ECF Nos. 14, 15) 15 Defendant. THREE DAY DEADLINE 16 17 Theresa Brooke (“Plaintiff”) filed this civil rights action pursuant to 42 U.S.C. § 1983. 18 Currently before the Court is Plaintiff’s unopposed motion for leave to file an amended 19 complaint. The Court, having reviewed the record, finds this matter suitable for decision without 20 oral argument. See Local Rule 230(g). Accordingly, the previously scheduled hearing set on 21 July 8, 2020 will be vacated and the parties will not be required to appear at that time. Having 22 considered the moving papers, Defendant’s statement of non-opposition, as well as the Court’s 23 file, the Court issues the following order granting Plaintiff’s motion for leave to amend. 24 I. 25 BACKGROUND 26 On January 20, 2020, Plaintiff filed this action bringing claims under the Americans with 27 Disabilities Act and the California Unruh Civil Rights Act. (ECF No. 1.) On April 30, 2020, a scheduling order issued setting the pretrial and trial dates in this action. (ECF No. 13.) Pursuant 1 to the scheduling order, any motion or stipulation for leave to amend the complaint was to be 2 filed by May 15, 2020. (Id. at 2.)1 On June 9, 2020, Plaintiff filed a motion for leave to file a 3 first amended complaint. (Pl.’s Mot. Amend (“Mot”), ECF No. 14.) On June 22, 2020, 4 Defendant filed a statement of non-opposition notifying the Court that Defendant does not 5 oppose Plaintiff’s motion for leave to file a first amended complaint. (ECF No. 15.) 6 II. 7 LEGAL STANDARD 8 Once a district court has entered a pretrial scheduling order pursuant to Federal Rule of 9 Civil Procedure 16 setting a deadline for amending pleadings, the district court is to first apply 10 Rule 16’s standard for amending the scheduling order if the deadline to amend has passed. 11 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992); United States ex 12 rel. Terry v. Wasatch Advantage Grp., LLC, 327 F.R.D. 395, 403 (E.D. Cal. 2018). If the party 13 seeking amendment can satisfy the good cause standard of Rule 16(b), the district court then 14 must determine whether the moving party has satisfied the requirements of Rule 15(a). Wasatch, 15 327 F.R.D. at 403-04. 16 A. The Rule 16(b) Good Cause Standard 17 Federal Rule of Civil Procedure 16(b) provides that the district court must issue a 18 scheduling order that limits “the time to join other parties, amend the pleadings, complete 19 discovery, and file motions.” Fed. R. Civ. P. 16(b)(1)–(3). A scheduling order “may be 20 modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The 21 “good cause” standard “primarily considers the diligence of the party seeking the amendment.” 22 Mammoth Recreations, 975 F.2d at 609. To establish good cause, the party seeking the 23 modification of a scheduling order must generally show that even with the exercise of due 24 diligence, they cannot meet the requirement of that order. Id. The prejudice to other parties, if 25 any, may be considered, but the focus is on the moving party’s reason for seeking the 26 modification. Id. If the party seeking to amend the scheduling order fails to show due diligence, 27 1 All references herein to pagination of electronically filed documents pertain to those as indicated on the upper 1 the inquiry should end and the court should not grant the motion to modify. Zivkovic v. 2 Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Mammoth 3 Recreations, 975 F.2d at 609). “Relevant inquiries [into diligence] include: whether the movant 4 was diligent in helping the court to create a workable Rule 16 order; whether matters that were 5 not, and could not have been, foreseeable at the time of the scheduling conference caused the 6 need for amendment; and whether the movant was diligent in seeking amendment once the need 7 to amend became apparent.” Wasatch, 327 F.R.D. at 404 (internal quotation marks and citation 8 omitted) (alteration in original). 9 B. The Rule 15 Standard for Amending Pleadings 10 If Plaintiff can meet the good cause standard to modify the scheduling order under Rule 11 16, Plaintiff must then satisfy the standards under Federal Rule of Civil Procedure 15(a). 12 Wasatch, 327 F.R.D. at 403-04. Twenty-one days after a responsive pleading or a motion to 13 dismiss is filed, a party may amend only by leave of the court or by written consent of the 14 adverse party. Fed. R. Civ. P. 15(a)(1)-(2). “Rule 15(a) is very liberal and leave to amend ‘shall 15 be freely given when justice so requires.’ ” Amerisource Bergen Corp. v. Dialysis West, Inc., 16 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)); see also Eminence Capital, 17 LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (noting leave should be granted with 18 “extreme liberality”) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th 19 Cir.2001)). Leave to amend under Rule 15 is “within the sound discretion of the trial court,” and 20 “[i]n exercising this discretion, a court must be guided by the underlying purpose of Rule 15 to 21 facilitate decision on the merits, rather than on the pleadings or technicalities.” United States v. 22 Webb, 655 F.2d 977, 979 (9th Cir. 1981). 23 In determining whether to grant leave to amend, a court is to consider five factors: “(1) 24 bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) 25 whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 26 808 (9th Cir. 2004). The factors are not weighed equally. “Futility of amendment can, by itself, 27 justify the denial of a motion for leave to amend.” Bonin, 59 F.3d at 845. Undue delay, “by 1 (quotation marks omitted) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)). 2 “[I]t is the consideration of prejudice to the opposing party that carries the greatest weight.” 3 Eminence Capital, 316 F.3d at 1052. “Absent prejudice, or a strong showing of any of the 4 remaining [ ] factors, there exists a presumption under Rule 15(a) in favor of granting leave to 5 amend.” Id. 6 III. 7 DISCUSSION 8 Because the Court’s scheduling order set the deadline to file amended pleadings as May 9 15, 2020 (ECF No. 13 at 2), the Court will first determine whether Plaintiff has demonstrated 10 good cause pursuant to Rule 16. See Wasatch, 327 F.R.D. at 403. 11 Plaintiff acknowledges that the instant motion was not filed until after the deadline to 12 amend pleadings had expired. (Mot. 3.) Plaintiff contends her counsel repeatedly requested a 13 declaration from Defendant in order to affirm the presence or non-presence of a barrier to the 14 dining area in Defendant’s hotel. (Id.) Defendant apparently refused to provide such 15 confirmation and Plaintiff visited the hotel to investigate, but encountered an additional barrier 16 that prevented her from entering the hotel altogether. (Id.) Plaintiff seeks to add a cause of 17 action regarding this barrier. (Id.) Despite the deadline passing, Plaintiff argues good cause 18 exists to modify the scheduling order as the deadline only recently passed, discovery has not 19 commenced, the Ninth Circuit disfavors piecemeal litigation against the same non-compliant 20 party, and Plaintiff has demonstrated diligence in meeting the deadline through the repeated 21 requests for Defendant’s cooperation and in seeking amendment shortly after encountering the 22 second barrier at the hotel. (Id.) Defendant has notified the Court that it does oppose Plaintiff’s 23 motion to amend, and the Court cannot discern any compelling reason to deny leave to amend 24 the complaint beyond the deadline set in the scheduling order. Accordingly, Plaintiff has 25 demonstrated good cause to modify the scheduling order. 26 The Court next turns to the question of whether leave to amend should be granted under 27 Federal Rule of Civil Procedure 15(a). Wasatch, 327 F.R.D. at 403-04. “[I]t is the consideration 1 at 1052. “Absent prejudice, or a strong showing of any of the remaining [ ] factors, there exists a 2 presumption under Rule 15(a) in favor of granting leave to amend.” Id. The burden to 3 demonstrate prejudice falls upon the party opposing the amendment. DCD Programs, Ltd. v. 4 Leighton, 833 F.2d 183, 187 (9th Cir. 1987). 5 Given Defendant does not oppose the motion to amend, the Court finds that granting 6 Plaintiff’s motion to amend would not prejudice Defendant. There is no evidence the motion 7 was brought in bad faith nor does it produce undue delay in the litigation. See Lockheed Martin 8 Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999) (explaining that where a 9 motion to amend was made more than four months after the cutoff date, “[a] need to reopen 10 discovery and therefore delay the proceedings supports a district court’s finding of prejudice.”). 11 Moreover, there is no reason to believe that the proposed amendment is futile. See SAES Getters 12 S.p.A. v. Aeronex, Inc., 219 F. Supp. 2d 1081, 1086 (S.D. Cal. 2002) (illustrating that an 13 amendment is futile “only if it would clearly be subject to dismissal.”). 14 Consequently, finding that none of the foregoing factors weigh against granting Plaintiff 15 leave to amend, and Plaintiff’s motion is unopposed, the Court finds leave to amend appropriate. 16 See Austin v. W. Concrete Pumping, Inc., No. 17-CV-2363-AJB-MDD, 2018 WL 2684140, at 17 *1 (S.D. Cal. June 5, 2018) (granting plaintiff’s motion for leave to file an amended complaint 18 after considering the motion and the defendants’ non-opposition); Gonzales v. F/V Daniela, No. 19 11cv01066 AJB (JMA), 2013 WL 444626, at *1 (S.D. Cal. Feb. 4, 2013) (concluding that leave 20 to amend was warranted in light of the defendants’ non-opposition to the motion and reasonable 21 explanation for the amendment). 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / wOAOe UV EV OO MAD IO eee AY VI
1 IV. 2 CONCLUSION AND ORDER 3 The Court finds that good cause exists to grant Plaintiff's motion for leave to file a first 4 | amended complaint. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's motion for leave to file a first amended complaint is GRANTED; 7 2. Plaintiff SHALL FILE a first amended complaint within three (3) days of the date 8 of entry of this order; and 9 3. The July 8, 2020 hearing on Plaintiff's motion for leave to file a first amended 10 complaint is VACATED. 11 Db IT IS SO ORDERED. DAM Le 13 | Dated: _June 26, 2020_ ef 14 UNITED STATES MAGISTRATE JUDGE
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