Chinitz v. Intero Real Estate Services

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 RONALD CHINITZ, Case No. 18-cv-05623-BLF

8 Plaintiff, ORDER GRANTING MOTION TO 9 v. AMEND SCHEDULING ORDER, AMEND COMPLAINT, AND 10 INTERO REAL ESTATE SERVICES, SUBSTITUTE CLASS REPRESENTATIVE 11 Defendant. [Re: ECF 178] 12 Before the Court is Plaintiff’s motion to amend the scheduling order, complaint, and 13 substitute class representative on behalf of and to protect the certified classes of California 14 residents who allegedly received unlawful telemarketing calls from real estate agents affiliated 15 with Defendant Intero Real Estate Services (“Intero”). See Mot., ECF 178. Intero opposes this 16 motion. See Opp’n, ECF 194. The Court GRANTS this motion and finds good cause to modify the 17 case schedule. The Court also terminates as moot Intero’s pending motion to amend its answer, 18 see ECF 154, as this Court allowing an amended complaint necessarily allows Intero to file an 19 amended answer. 20 “Once the district court ha[s] filed a pretrial scheduling order pursuant to Federal Rule of 21 Civil Procedure 16 which established a timetable for amending pleadings that rule’s standards 22 control.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992). Rule 16 23 provides that the Court must issue a scheduling order “[that] limit[s] the time to join other parties, 24 amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b). “A schedule 25 may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The 26 “good cause” requirement of Rule 16 “primarily considers the diligence of the party seeking the 27 amendment.” Johnson, 975 F.2d at 609. “If the party was not diligent, the inquiry should end.” Id. 1 If a party shows compliance with Rule 16, the Court must then consider the permissibility 2 of amendment under Rule 15. See Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 3 (9th Cir.2001) (noting that the Ninth Circuit permits amendment under Rule 15 with “extreme 4 liberality”). A district court may consider four factors when determining whether to grant leave to 5 amend under Rule 15: 1) bad faith on behalf of the moving party; 2) whether amendment would 6 cause undue delay; 3) prejudice to the opposing party; and 4) futility. Id.; see also Bowles v. 7 Reade, 198 F.3d 752, 758–59 (9th Cir.1999) (noting that undue delay on its own does not justify 8 denying leave to amend under Rule 15). Rule 15(d) permits a party to supplement its complaint in 9 order to include “any transaction, occurrence, or event that happened after the date of the pleading 10 to be supplemented.” Fed. R. Civ. P. 15(d); see also William Inglis & Sons Baking Co. v. ITT 11 Cont’l Baking Co., 668 F.2d 1014, 1057 (9th Cir.1982) (“The purpose of Rule 15(d) is to promote 12 as complete an adjudication of the dispute between the parties as possible.”). 13 Here, the Court finds that Plaintiff was diligent in seeking amendment and has 14 demonstrated good cause for doing so. As soon as Plaintiff’s counsel realized the named plaintiff 15 had reached out to Intero directly in an attempt to settle this litigation without involving counsel, 16 violating his fiduciary duty to absent class members, Plaintiff filed this motion to amend. See Mot. 17 The Court finds that this is good cause to substitute the named plaintiff and file an amended 18 complaint. Moreover, the Court finds no prejudice to Intero, which had sought to amend its 19 answer anyway, and a modified case schedule will give both parties plenty of time to prepare for 20 the November 2021 trial. 21 In the Court’s view, only limited additional discovery will be relevant to the amendments 22 in the complaint. As the Court outlined at the April 29, 2021 case management conference, this 23 limited, expedited discovery shall commence immediately. The Parties shall meet and confer and 24 provide the Court with a discovery plan covering both the amended complaint and amended 25 answer. All discovery shall be completed by September 1, 2021, and any objections to discovery 26 responses must be filed no later than September 7, 2021. 27 In response to Intero’s request for an additional summary judgment motion, the Court will 1 of no more than three pages identifying the issues it would raise if allowed. If granted, the Court 2 || will set an expedited briefing schedule. 3 IT IS SO ORDERED. 4 5 || Dated: May 4, 2021 kom Lh ham tn) 6 BETH LABSON FREEMAN 7 United States District Judge 8 9 10 11 12

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