1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 ROSE DESIO, 7 Case No. 2:20-cv-01486-APG-NJK Plaintiff(s), 8 ORDER v. 9 [Docket No. 66] STATE FARM MUTUAL AUTOMOBILE 10 INSURANCE COMPANY, 11 Defendant(s). 12 Pending before the Court is Plaintiff’s motion to supplement the complaint pursuant to 13 Rule 15(d) of the Federal Rules of Civil Procedure. Docket No. 66. Defendant filed a response in 14 opposition. Docket No. 72. Plaintiff filed a reply. Docket No. 75. The Court held a hearing on 15 the motion on October 25, 2021. Docket No. 78. For the reasons discussed more fully below, the 16 Court DENIES Plaintiff’s motion to supplement the complaint. 17 I. MAGISTRATE JUDGE AUTHORITY 18 Before turning to the substance of the motion, the Court begins by evaluating the 19 undersigned’s authority to resolve the matter. With respect to matters not enumerated in 28 U.S.C. 20 § 636(b)(1)(A), courts determine a magistrate judge’s authority based on whether the subject ruling 21 is “dispositive” in nature and effect. See, e.g., Maisonville v. F2 Am., Inc., 902 F.2d 746, 747-48 22 (9th Cir. 1990). The Court herein denies Plaintiff’s motion to supplement because modification 23 of the scheduling order is not warranted. Plaintiff represents that such a ruling does not prevent 24 her from pursuing this claim in a separate lawsuit. Docket No. 75 at 2-3. Hence, the Court’s 25 decision is akin to a denial of a motion to consolidate cases, which is not dispositive in nature. 26 See, e.g., Carcaise v. Cemex, Inc., 217 F. Supp. 2d 603, 604 n.1 (W.D. Pa. 2002) (in denying 27 motion to consolidate cases, concluding that a “magistrate judge has the authority to rule on the 28 request to consolidate as a non-dispositive matter”); Jackson v. Berkey, No. 3:19-cv-06101-BHS- 1 DWC, 2020 WL 1974247, at *2 n.2 (W.D. Wash. Apr. 24, 2020) (“Motions to consolidate are 2 considered non-dispositive and are within the pre-trial authority of the magistrate judge”). 3 Accordingly, this ruling is within a magistrate judge’s authority to issue.1 4 II. BACKGROUND 5 This lawsuit revolves around an insurance dispute. On August 23, 2019, Plaintiff was 6 driving her Jeep Wrangler when she was injured in an accident. Docket No. 1-1 at ¶ 7.2 Plaintiff 7 alleges that her injuries resulted in roughly a quarter million dollars in past medical expenses, in 8 addition to future medical expenses. Docket No. 1-1 at ¶¶ 8, 10. On or about January 9, 2020, 9 State Farm tendered $50,000 in underinsured motorist benefits provided by the policy specific to 10 the Jeep Wrangler. Id. at ¶ 21. 11 At the time of the accident, Plaintiff alleges that she was insured under four different State 12 Farm policies, each of which include underinsured motorist coverage. Id. at ¶¶ 12-13. Plaintiff 13 alleges that the accident triggered all four policies pursuant to Nevada law because each policy 14 attaches to an individual as opposed to a particular vehicle. See id. at ¶ 14. Plaintiff further alleges 15 that coverage could not be precluded on the grounds of any anti-stacking provision in light of State 16 Farm’s collection of premiums on each policy for the same risk. See id. at ¶¶ 15-20. On May 29, 17 2020, Plaintiff filed a complaint in state court on this “Stacking Claim.” On August 10, 2020, 18 State Farm removed the instant case based on diversity jurisdiction. Docket No. 1. 19 The underlying issue that the pending motion practice addresses is whether State Farm was 20 required to increase the underinsured motorist coverage of $50,000/$100,000 to 21 $100,000/$300,000 based on liability coverage limits for bodily injury (i.e., a “Higher Limits” 22 claim). On February 24, 2020, Plaintiff’s counsel sent a letter referencing this issue: 23
24 1 To the extent either party disagrees, that party is free to address the issue in an objection to the assigned district judge. See Florence v. Stanback, 607 F. Supp. 2d 1119, 1122 (C.D. Cal. 25 2009); see also Bastidas v. Chappell, 791 F.3d 1155, 1162 (9th Cir. 2015) (as part of waiver analysis, encouraging magistrate judges to advise litigants of the ability to object to a determination 26 that a matter is non-dispositive). 27 2 This section is derived largely from Plaintiff’s allegations as stated in the complaint. As would be expected, Defendant does not agree with all of Plaintiff’s positions. See Docket No. 13 28 (answer). The Court addresses Plaintiff’s allegations and claims for purposes of background only. The Declarations Pages for the Honda Policy and the Chevy Policy 1 show 100/300 in liability coverage and 50/100 in UIM benefits [coverage]. Thus, unless State Farm provides [Plaintiff] with an 2 executed “drop down” form, the law requires that State Farm offer 100/300 UIM coverage on the subject policies. 3 4 Docket No. 72-1 at 3 n.1. Plaintiff then demanded that, absent providing such forms, State Farm 5 tender underinsured motorist benefits based on the higher liability limits. Id. at 4. State Farm did 6 not budge from the $50,000 amount that it had already tendered. 7 On May 29, 2020, Plaintiff filed her complaint without the allegations now in dispute 8 regarding a Higher Limits claim. Compare Docket No. 1-1 with Docket No. 66-3.3 On September 9 9, 2020, counsel engaged in a Rule 26(f) conference and agreed to a deadline to amend pleadings 10 of December 2, 2020. See Docket No. 16 at 1-2. On September 14, 2020, the Court adopted the 11 parties’ proposed deadline and included it in the resulting scheduling order. Docket No. 17 at 2. 12 The deadline to amend expired as scheduled on December 2, 2020. On January 24, 2021, 13 upon reviewing Defendant’s summary judgment briefing, Plaintiff’s counsel requested that State 14 Farm provide him with the selection forms to determine whether an increase was required under 15 the Higher Limits in the liability coverage for bodily injury. Docket No. 66-2 at 19-20. Plaintiff’s 16 counsel warned that the failure to issue payment would lead Plaintiff to move for leave to amend 17 the complaint to add allegations with respect to a Higher Limits claim. Id. at 20.4 On January 29, 18 2021, Plaintiff’s counsel demanded that State Farm tender the additional $50,000 on or before 19 February 2, 2021. Docket No. 66-2 at 16. Plaintiff’s counsel warned that failure to do so would 20 result in the filing of a motion for leave to amend to add allegations related to a Higher Limits 21 claim. Id. 22
23 3 Plaintiff argues that the Higher Limits issue is properly resolved through her pending motion for summary judgment and that this motion to supplement was filed in an abundance of 24 caution. Docket No. 75 at 2. The Court addresses herein only whether supplementation is proper and expresses no opinion regarding the motion for summary judgment. 25 4 Plaintiff now insists that she is seeking to supplement and not to amend. See, e.g., Docket 26 No. 66 at 5-7. “Parties and courts occasionally confuse supplemental pleadings with amended pleadings and mislabeling is common.” 6A C.A. Wright, A.R. Miller, & M.K. Kane, FEDERAL 27 PRACTICE AND PROCEDURE, § 1504 (3d ed.). Such mislabeling is generally unimportant given the similarity of the applicable standards. See id. The Court does not place importance on the fact 28 that Plaintiff has been inconsistent in identifying the relief she seeks. 1 On February 9, 2021, the parties filed a stipulation to extend the deadlines in the scheduling 2 order, including the expired deadline to amend. Docket No. 40. On February 17, 2021, the Court 3 issued an order setting that stipulation for a hearing. Docket No. 41. The Court therein identified 4 a number of deficiencies and areas of concern, including that the parties had to that point conducted 5 no discovery and were seeking to reopen the deadline to amend or add parties without any 6 indication of any need for such relief. See id. at 2.5 On February 22, 2021, the Court held the 7 hearing on the stipulation. Docket No. 43.6 Most pertinent to the issues now before the Court, 8 Plaintiff’s counsel represented at that hearing that he did not believe Plaintiff needed to undertake 9 any affirmative discovery, Hearing Rec. (Feb. 22, 2021) at 2:07 p.m., but that such understanding 10 might change based on the discovery conducted by Defendant, id. at 2:08 p.m. When the Court 11 specifically queried Plaintiff’s counsel about any need to amend the pleadings, he identified none 12 and speculated without elaboration that a need could arise in the future. Id. at 2:17 – 2:18 p.m. 13 Although the Court granted relief with respect to some deadlines, the Court denied the request to 14 reopen the amendment deadline given the failure to meet the applicable standards, the speculative 15 nature of the need to alter the pleadings,7 and the nonsensical nature of the request given that the 16 proposed deadline was only a few days after the hearing at which Plaintiff’s counsel represented 17 that he had no current need to amend. See Hearing Rec. (Feb. 22, 2021) at 2:18 – 2:20 p.m. 18 On March 1, 2021, Plaintiff’s counsel resumed his correspondence with State Farm, noting 19 that State Farm had neither tendered the additional amount nor provided the requested selection 20 forms. Docket No. 66-2 at 15. On March 3, 2021, Plaintiff’s counsel again emailed defense 21
22 5 These concerns echo those articulated when the Court denied without prejudice the previous iteration of the stipulation for failing to, inter alia, address the governing standards or 23 sufficiently explain why the case should effectively start over from scratch. Docket No. 39 at 2. 24 6 A transcript has not been prepared for the hearings on February 22, 2021, or on October 25, 2021. As such, the Court will cite herein to the audio recordings. 25 7 “A party is not precluded from filing a motion for leave to amend solely because the 26 deadline set forth in the scheduling order has lapsed.” Novotny v. Outback Steakhouse of Fla., LLC, No. 2:16-cv-02716-RFB-NJK, 2017 U.S. Dist. Lexis 114672, at *2-3 (D. Nev. July 21, 27 2017). Instead, a motion filed after the deadline to amend must include a showing as to why the scheduling order should be modified in addition to whether the governing Rule 15 standards are 28 met. See id. This was made clear in this case. Hearing Rec. (Feb. 22, 2021) at 2:19 p.m.; Docket No. 41 at 2 (citing Novotny, 2017 U.S. Dist. Lexis 114672, at *2-3). 1 counsel, now threatening to file a motion for summary judgment if action was not taken on the 2 issue. Id. at 14. On March 18, 2021, defense counsel provided the selection forms. Id. at 8. On 3 March 26, 2021, Plaintiff’s counsel again demanded that State Farm tender the additional $50,000 4 on or before April 2, 2021, warning that failure to do so would result in the filing of a motion for 5 summary judgment on the Higher Limits issue. Id. at 6-8. On April 5, 2021, Plaintiff’s counsel 6 sought a response from defense counsel. Id. at 4, 5. On April 15, 2021, Plaintiff’s counsel sought 7 a representation from State Farm that it would tender the additional $50,000, warning that failure 8 to do so would result in the filing of a motion the following week. Id. at 2. On April 27, 2021, 9 Plaintiff filed a motion for summary judgment addressing this issue. Docket No. 49. On May 26, 10 2021, Defendant filed a response to the motion for summary judgment, arguing that the motion 11 was improper given the lack of any Higher Limits claim in the complaint. Docket No. 56 at 6-7. 12 On July 12, 2021, Plaintiff filed a motion for leave to “amend” the complaint pursuant to 13 Rule 15(d) of the Federal Rules of Civil Procedure. Docket No. 62.8 Given the expiration of the 14 deadline to amend eight months earlier and its potential applicability to Plaintiff’s motion, the 15 Court denied the motion without prejudice to enable the parties to address which standards govern 16 the motion and whether they are satisfied. Docket No. 65. On July 28, 2021, Plaintiff renewed 17 the motion as one seeking to “supplement” the complaint pursuant to Rule 15(d). Docket No. 66. 18 That is the motion currently before the Court. 19 III. LEGAL STANDARDS 20 Requests to supplement a pleading are contemplated by Rule 15(d), which provides that 21 “[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve a 22 supplemental pleading setting out any transaction, occurrence, or event that happened after the 23 date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). Hence, “Rule 15(d) provides a 24 mechanism for parties to file additional causes of action based on facts that didn’t exist when the 25 original complaint was filed.” Eid v. Alaska Airlines, Inc., 621 F.3d 858, 874 (9th Cir. 2010). Rule 26 8 Plaintiff relies in part on the state rule equivalent. See Docket No. 65 at 5 (quoting Nev. 27 R. Civ. P. 15(d)); Docket No. 62 at 4 (same). Because the federal rules govern after removal, Fed. R. Civ. P. 81(c)(1), the Court applies Rule 15(d) of the Federal Rules of Civil Procedure. 28 Discussion herein as to “Rules” refers to the Federal Rules of Civil Procedure. 1 15(d) also provides a mechanism by which persons “participating in these new events may be 2 added if necessary.” Griffin v. Cnty. Sch. Bd. of Prince Edward Cnty., 377 U.S. 218, 227 (1964). 3 “The purpose of Rule 15(d) is to promote as complete an adjudication of the dispute between the 4 parties as possible.” William Inglis & Sons Baking Co. v. ITT Cont’l Baking Co., 668 F.2d 1014, 5 1057 (9th Cir. 1981). This rule is designed as “a tool of judicial economy and convenience” to 6 “promote the economical and speedy disposition of the controversy.” Keith v. Volpe, 858 F.2d 7 467, 473 (9th Cir. 1988). Hence, leave to permit supplemental pleadings is favored when it serves 8 to promote judicial efficiency. See Planned Parenthood of S. Ariz. v. Neely, 130 F.3d 400, 402 9 (9th Cir. 1997). 10 “Under Rule 15(d), the filing of a supplemental pleading is not available to the pleader as 11 a matter of right.” United States ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 6 (1st Cir. 12 2015); accord Kroll v. Incline Vill. Gen. Improvement Dist., 598 F. Supp. 2d 1118, 1124 (D. Nev. 13 2009). Whether to allow a supplemental pleading is entrusted to the broad discretion of the district 14 court. Keith, 858 F.2d at 473; see also Howard v. City of Coos Bay, 871 F.3d 1032, 1040 (9th Cir. 15 2017). Rule 15(d) is to be liberally construed absent a showing of prejudice to the opposing party. 16 Keith, 858 F.2d at 475; see also La Salvia v. United Dairymen of Ariz., 804 F.2d 1113, 1119 (9th 17 Cir. 1986). In addition to prejudice, courts commonly evaluate the propriety of a motion to 18 supplement based on factors such as (1) undue delay, (2) bad faith or dilatory motive on the part 19 of the movant, (3) repeated failure of previous amendments or supplements, and (4) futility. Lyon 20 v. U.S. Immigr. & Customs Enf’t, 308 F.R.D. 203, 214 (N.D. Cal. 2015).9 “Courts also consider 21 whether allowing leave to supplement would align with the goal of Rule 15(d), which is to promote 22 judicial efficiency.” Id. The party opposing supplementation bears the burden of establishing that 23 denial would be appropriate on these grounds. Nat’l Credit Union Admin. Bd. v. HSBC Bank U.S., 24 Nat’l Ass’n, 331 F.R.D. 63, 69 (S.D.N.Y. 2019). 25 26 9 The standard for evaluating a motion to supplement brought under Rule 15(d) is the same 27 as the standard for evaluating a motion to amend brought under Rule 15(a). State of Cal. v. U.S. Dept. of Labor, 155 F. Supp. 3d 1089, 1099 (E.D. Cal. 2016) (quoting Yates v. Auto City 76, 299 28 F.R.D. 611, 614 (N.D. Cal. 2013)). 1 When a motion requires by implication the modification of the scheduling order, however, 2 the movant must first satisfy the “good cause” standard established by Rule 16(b). See Johnson v. 3 Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992); see also Fed. R. Civ. P. 16(b)(4) 4 (“A schedule may be modified only for good cause and with the judge’s consent”).10 The good 5 cause inquiry is focused on the movant’s reasons for seeking to modify the scheduling order and 6 primarily considers the movant’s diligence. In re W. States Wholesale Nat. Gas Antitrust Litig., 7 715 F.3d 716, 737 (9th Cir. 2013). The key determination is whether the subject deadline “cannot 8 reasonably be met despite the diligence of the party seeking the extension.” Johnson, 975 F.2d at 9 609. The Court considers whether relief from the scheduling order is sought based on the 10 development of matters that could not have been reasonably anticipated at the time the schedule 11 was established. Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999). Courts may 12 also consider other pertinent circumstances, including whether the movant was diligent in seeking 13 modification of the scheduling order once it became apparent that the movant required relief from 14 the deadline at issue. Sharp v. Covenant Care LLC, 288 F.R.D. 465, 467 (S.D. Cal. 2012). “The 15 diligence obligation is ongoing” such that parties must “diligently attempt to adhere to [the 16 deadlines in the scheduling order] throughout the subsequent course of the litigation.” Morgal v. 17 Maricopa Cnty. Bd. of Supervisors, 284 F.R.D. 452, 460 (D. Ariz. 2012). “[C]arelessness is not 18 compatible with a finding of diligence and offers no reason for a grant of relief.” Johnson, 975 19 F.2d at 609.11 The party seeking modification of the scheduling order bears the burden of 20 establishing diligence. Singer v. Las Vegas Athletic Clubs, 376 F. Supp. 3d 1062, 1077 (D. Nev. 21 2019). 22 23 24 10 When a request to modify the scheduling order is filed after that subject deadline has 25 expired, the local rules require an additional showing of excusable neglect. Local Rule 26-3; see also Branch Banking & Trust Co. v. D.M.S.I., LLC, 871 F.3d 751, 764-65 (9th Cir. 2017). The 26 Court need not reach the issue of excusable neglect here given the failure to establish good cause. 27 11 Although prejudice to the opposing party may also be considered, the focus of the inquiry remains on the movant’s reasons for seeking modification. Johnson, 975 F.2d at 609. “If that 28 party was not diligent, the inquiry should end.” Id. 1 IV. ANALYSIS 2 Plaintiff’s motion to supplement was filed after the deadline to amend expired. The Court 3 will address whether the deadline to amend governs the instant motion to supplement and, if so, 4 whether good cause has been established to modify the scheduling order. 5 A. Applicability of Deadline to Amend and Rule 16(b) 6 The parties dispute as a threshold matter whether Plaintiff’s motion to supplement requires 7 modification of the scheduling order. There is no dispute that the motion to supplement was filed 8 well after the deadline to amend expired. See Docket No. 17 at 2. Plaintiff argues that this deadline 9 is inapplicable given that she is seeking to “supplement” her complaint rather than to “amend” it. 10 Docket No. 66 at 5-7. Defendant counters that the Rule 16(b) analysis is triggered for motions to 11 supplement filed after the deadline to amend has expired. Docket No. 72 at 8-10. 12 There is a split of authority as to whether a motion to supplement filed after a deadline to 13 amend triggers the Rule 16(b) analysis. Several cases have found that it does not. Like Plaintiff 14 does here, these courts have focused on the text of the governing rules and the scheduling order. 15 See, e.g., Fremont Inv. & Loan v. Beckley Singleton, Chtd., No. 2:03-cv-1406-PMP-RJJ, 2007 WL 16 1213677, at *7 (D. Nev. Apr. 24, 2007). More specifically, Rule 15 separately identifies 17 “amendments” and “supplemental pleadings,” compare Fed. R. Civ. P. 15(a)-(c) with Fed. R. Civ. 18 P. 15(d), but Rule 16 requires only that a deadline be set to “amend the pleadings” without 19 reference to a deadline to supplement, Fed. R. Civ. P. 16(b)(3)(A).12 In light of that omission from 20 Rule 16(b)(3)(A), these courts have deduced that a scheduling order setting a deadline to amend 21 must be treated as an issue separate from whether there is any deadline to supplement. See, e.g., 22 Ohio Valley Env’t Coal. v. U.S. Army Corps of Eng’rs, 243 F.R.D. 253, 256 (S.D.W.V. 2007). 23 24
25 12 Rule 15(a)(2) provides that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Rule 15(d) provides that 26 “the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” 27 Fed. R. Civ. P. 15(d). Rule 16(b)(3) provides that “[t]he scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 28 16(b)(3). 1 Hence, these courts have determined that a motion to supplement is not subject to a deadline 2 governing amendment.13 3 A separate line of cases has reached the opposite conclusion, however, requiring a showing 4 of good cause to modify the scheduling order to supplement the pleadings after expiration of the 5 deadline to amend. These courts have reached that conclusion based on a few different 6 considerations. First, in direct contrast to the case law addressed above, some courts have 7 concluded that the plain language in Rule 16(b)(3)(A) broadly “governs any pleading that serves 8 to change or amend the previous pleading.” Fair Isaac Corp. v. Experian Info. Sols. Inc., Civil 9 No. 06-4112 (ADM/JSM), 2009 WL 10677527, at *11 (D. Minn. Feb. 9, 2009). Second, some 10 courts have highlighted the importance of judicial case management, expressing concern at the 11 disruption of allowing supplementation at any time in the litigation—including after the close of 12 discovery and shortly before trial—without a showing to justify that timing. Pflaum v. Town of 13 Stuyvesant, No. 1:11-cv-335 (GTS/RFT), 2014 WL 12891533, at *5 (N.D.N.Y. Oct. 23, 2014). 14 Third, some courts have held that Rule 16’s good cause analysis is triggered for a motion to 15 supplement based on the fact that it would require relief from other deadlines in the scheduling 16 order, including the discovery cutoff. Coalview Centralia, LLC v. TransAlta Centralia Mining 17 LLC, No. C18-5639-RSM, 2021 WL 2290842, *2 (W.D. Wash. June 4, 2021). Hence, these courts 18 19 20
21 13 See, e.g., Mason Tenders Dist. Council of Greater N.Y. v. Phase Constr. Servs., Inc., 318 F.R.D. 28, 36 n.10 (S.D.N.Y. 2016); Ohio Valley, 243 F.R.D. at 256; Agua Caliente Band of 22 Cahuilla Indians v. Coachella Valley Water Dist., No. EDCV 13-883 JGB (SPx), 2020 WL 5775174, at *4 (C.D. Cal. July 8, 2020); Garrett v. Richardson, No. 0:18-cv-1309-CMC-PJG, 23 2019 WL 2205751, at *2 n.3 (D.S.C. May 22, 2019); Vargas v. Cnty. of Yolo, No. 2:15-cv-02537- TLN-CKD, 2018 WL 3241406, at *3 (E.D. Cal. July 2, 2018); Poly-Med, Inc. v. Novus Sci. Pte 24 Ltd., No. 8:15-cv-01964-JMC, 2017 WL 2874715, at *4 (D.S.C. July 6, 2017); Beckett v. Inc. Vill. of Freeport, No. CV 11-2163 (LDW) (AKT), 2014 WL 1330557, at *6 (E.D.N.Y. Mar. 31, 2014); 25 Reyazuddin v. Montgomery Cnty., Md., Civil No. DKC 11-0951, 2012 WL 5193837, at *3 (D. Md. Oct. 18, 2012); Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., No. 09-cv-00970-PAB-KMT, 26 2011 WL 7627422, at *9 (D. Colo. Sept. 19, 2011), adopted, 2012 WL 1020939 (D. Colo. Mar. 26, 2012); Watson v. Wright, No. 08-cv-00960(A)(M), 2011 WL 1118608, at *5 (W.D.N.Y. Jan. 27 11, 2011), adopted, 2011 WL 1099981 (W.D.N.Y. Mar. 24, 2011); Fremont Investment, 2007 WL 1213677, at *7; see also Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177, 1192 28 (10th Cir. 2015) (dicta casting doubt on applicability of deadline to amend on motion to supplement). 1 have determined that a motion to supplement is subject to the scheduling order. This line of cases 2 represents the majority approach.14 3 The Court is persuaded by the majority approach and similarly concludes that the deadline 4 to amend applies to motions to supplement. As always, the Court begins its analysis with the text 5 of the Federal Rules of Civil Procedure. Business Guides, Inc. v. Chromatic Commc’ns Enters., 6 Inc., 498 U.S. 533, 540 (1991). Rule 16(b) does indeed refer to “amendment” while Rule 15 7 separately references “amendments” and “supplemental pleadings.” Moreover, there is a technical 8 distinction between amendment and supplementation in that the latter addresses events arising 9 after the currently operative pleading was filed. See Fed. R. Civ. P. 15(d). Nonetheless, the Court 10 is not persuaded that the Rules make a clear-cut distinction between the two for purposes of a 11 scheduling order. Courts have routinely recognized that there is “little practical significance” to 12 any distinction between amending and supplementing. E.g., Franks v. Ross, 313 F.3d 184, 198 13 n.15 (4th Cir. 2002). Moreover, the United States Supreme Court, the Ninth Circuit, and other 14 federal courts appear to have interpreted supplementation as a type of amendment. See, e.g., 15 Griffin, 377 U.S. at 227 (Rule 15(d) “plainly permits supplemental amendments to cover events 16 happening after suit” (emphasis added)); Howard, 871 F.3d at 1040 (noting question of whether 17 14 See, e.g., Shubert v. Town of Glastonbury, No. 3:18-cv-00112 (MPS), 2020 WL 18 6395472, at *1 (D. Conn. Nov. 2, 2020); Wilson v. Deutsche Bank Trust Co. Ams., No. 3:18-cv- 0854-D, 2019 WL 5840325, at *16 (N.D. Tex. Nov. 7, 2019); Kotler v. Bosco, No. 9:17-cv-0394 19 (GTS/ML), 2019 WL 12291097, at *5 (N.D.N.Y. Nov. 4, 2019); Jackson v. Calone, No. 2:16-cv- 00891-TLN-KJN, 2019 WL 4747811, at *3 (E.D. Cal. Sept. 30, 2019); Nomadix, Inc. v. Guest- 20 Tek Interactive Ent. Ltd., No. CV 16-08033-AB (FFMx), 2018 WL 10612577, at *1-2 (C.D. Cal. Apr. 3, 2018); Slaughter v. Escamilla, No. 3:16-cv-00457-MMD-WCG, 2018 WL 1470582, at *2- 21 3 (D. Nev. Mar. 26, 2018); Cole v. Educ. Credit Mgmt. Corp., No. ED CV 17-00974-JFW (SP), 2017 WL 8116538, at *1-2 (C.D. Cal. Oct. 13, 2017); Murphy v. U.S. Forest Serv., No. 2:13-cv- 22 02315-TLN-AC, 2016 WL 366434, at *3-4 (E.D. Cal. Feb. 1, 2016); Pflaum, 2014 WL 12891533, at *5; Saratoga Potato Chips Co. v. Classic Foods, Inc., No. 1:12-cv-452, 2014 WL 2930495, at 23 *3 (N.D. Ind. June 27, 2014); Copeland v. Lane, No. 5:11-cv-01058 EJD, 2013 WL 1899741, at *4-5 (N.D. Cal. May 6, 2013); Jackson v. Odenat, No. 09 Civ. 5583 (JFK)(AJP), 2012 WL 505551, 24 at *2 (S.D.N.Y. Feb. 14, 2012); Premier Tierra Holdings, Inc. v. Ticor Title Ins. Co. of Fla., Inc., No. 4:09-cv-2872, 2011 WL 13350243, at *1 (S.D. Tex. Sept. 8, 2011); Concerned Citizens for a 25 Safe Cmty. v. Office of Fed. Detention Trustee, No. 09-cv-01409-DAE, 2011 WL 2971000, at *2 (D. Nev. July 19, 2011); AT&T Mobility, LLC v. Digital Antenna, Inc., No. 09-60639-CIV, 2010 26 WL 3608247, at *2 (S.D. Fla. Sept. 9, 2010); Poole v. City of Plantation, Fla., No. 05-61698-CIV, 2010 WL 1791905, at *32-33 (S.D. Fla. May 5, 2010); Fair Isaac, 2009 WL 10677527, at *11; 27 Infa-Lab, Inc. v. KDS Nail Int’l, No. 2:07-cv-01270 WBS EFB, 2008 WL 4793305, at *1-2 (E.D. Cal. Oct. 27, 2008); Aguayo v. Morehouse School of Medicine, Inc., No. 1:06-cv-1095-JOF, 2007 28 WL 9710273, at *3 (N.D. Ga. Dec. 10, 2007); McGrotha v. FedEx Ground Package Sys., Inc., No. 5:05-cv-391 (CAR), 2007 WL 640457, at *2 (M.D. Ga. Feb. 24, 2007). 1 “the plaintiff could have amended her complaint in the midst of litigation to add claims which 2 accrued after filing” by seeking permission to file a supplemental complaint pursuant to Rule 15(d) 3 (emphasis added)); LaSalvia, 804 F.2d at 1119 (referring to a Rule 15(d) motion to add “post- 4 complaint allegations” as seeking “amendment” of the complaint). Particularly given this 5 understanding of supplementation as expressed by federal courts, the reference in Rule 16(b)(3)(A) 6 to a deadline to “amend the pleadings” can be read as encompassing requests to supplement the 7 pleadings. Cf. Fair Isaac, 2009 WL 10677527, at *11. Hence, this Court is not persuaded that the 8 term “amend the pleadings” in Rule 16(b)(3)(A) by its plain meaning excludes efforts to 9 supplement the pleadings. 10 An understanding that the deadline to amend encompasses motions to supplement is 11 reenforced by the applicable advisory committee notes. Cf. Torres v. Oakland Scavenger Co., 487 12 U.S. 312, 316 (1988) (while views expressed by the advisory committee are “not determinative” 13 of a rule’s meaning, they are “of weight” in the judicial construction of the rules). In particular, 14 the advisory notes explain that the Rule 16(b)(3)(A)15 deadlines for amending and adding parties 15 were established to “assure[] that at some point both the parties and the pleadings will be fixed, by 16 setting a time within which joinder of parties shall be completed and the pleadings amended.” Fed. 17 R. Civ. P. 16, Advisory Committee Notes (1983).16 The expressed desire to solidify the pleadings 18 15 The 1983 advisory notes refer to Rule 16(b)(1), which had been the home of the 19 requirement to set a deadline “to join parties and to amend the pleadings.” 20 16 “An individual Rule must be construed as part of a procedural system, and the court’s interpretation of the Rules as a whole must further the just, speedy, and inexpensive determination 21 of every action.” City of Merced v. Fields, 997 F. Supp. 1326, 1337 (E.D. Cal. 1998). Courts do not interpret the Federal Rules of Civil Procedure by viewing the governing language in isolation, 22 but rather read the rules in the context of all pertinent provisions. Pavelic & LeFlore v. Marvel Ent. Grp., 493 U.S. 120, 123 (1989). Moreover, “[t]he Federal Rules of Civil Procedure, like any 23 statute, must not be interpreted woodenly when the literal language leads to absurd results.” Light v. Wolf, 816 F.2d 746, 748 (D.C. Cir. 1987). It is notable that Rule 16 requires a deadline not just 24 to amend, but also to add parties, Fed. R. Civ. P. 16(b)(3)(A), and these deadlines expire simultaneously, see Local Rule 26-1(b)(2). Efforts to supplement encompass both adding new 25 allegations or claims to the complaint and also joining new parties. See Griffin, 377 U.S. at 227. Hence, a motion to supplement to add new parties would on its face be subject to the scheduling 26 order deadline, while Plaintiff argues that a motion to supplement to add new claims would not. Adopting Plaintiff’s position could lead to cases in which new claims can be brought against 27 existing parties, while important actors with respect to those same claims cannot be joined based on the timing of the motion to supplement. But see id. (indicating that adding new parties 28 participating in new events to the existing case is allowed “to achieve an orderly and fair administration of justice”). Rather than interpret the rules as creating such incongruity, the better 1 and parties by imposing these deadlines runs contrary to Plaintiff’s argument that the scheduling 2 order does not apply to motions to supplement. 3 A finding that supplementing the pleadings is governed by the scheduling order’s deadline 4 to amend is also consistent with important policy considerations. As discussed above, a primary 5 purpose for the Rule 16(b)(3)(A) deadlines is to ensure that “both the parties and the pleadings 6 will be fixed.” Fed. R. Civ. P. 16, Advisory Committee Notes (1983). A leading commentator 7 has explained the reason for having these deadlines, along with the other deadlines set out in Rule 8 16(b)(3)(A), as follows: 9 The rationale for requiring the scheduling order to fix these deadlines is clear: these are the core activities that are necessary to 10 set the fundamental contours of the case and that often must be substantially completed before the court can determine whether the 11 litigation can be concluded by dispositive motion and before the parties feel equipped to engage in productive settlement 12 negotiations. It can be very difficult to efficiently manage a case without first knowing who the players are and what claims or 13 defenses they will assert. So good judicial case managers press the parties to make commitments on these matters as early as feasible. 14 15 3 MOORE’S FEDERAL PRACTICE, § 16.13[1][a] (3d ed.). The Ninth Circuit has also repeatedly and 16 emphatically addressed the importance of scheduling orders as tools for district courts to manage 17 their heavy caseloads. See, e.g., Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1027 (9th 18 Cir. 2006); Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005); Janicki 19 Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994); Johnson, 975 F.2d at 610-11. These 20 same concerns apply with equal force to motions to supplement the pleadings filed late in the 21 proceedings, as exempting motions to supplement from the scheduling order “would be thoroughly 22 disruptive and eschew any effort at judicial economy” such that “chaos could rein over the orderly 23 management of a case.” Pflaum, 2014 WL 12891533, at *5; see also Chicago Reg. Council of 24 Carpenters v. Vill. of Schaumburg, 644 F.3d 353, 356-57 (7th Cir. 2011) (affirming denial of 25 motion to supplement filed after dispositive motion practice because the district court “was well 26
27 approach is that the Rule 16(b)(3)(A) deadlines to “amend the pleadings” and to “join other parties” encompass requests to supplement the pleadings to add new claims and/or to add new 28 parties. Cf. Fair Isaac, 2009 WL 10677527, at *11. 1 within its rights to conclude that this was too little, too late”).17 These case management concerns 2 are amplified by the fact that supplementing the pleadings may require modification of the 3 discovery cutoff and other deadlines, as is the case here,18 so it makes little sense to allow 4 disruption of the established schedule for the proceedings without the required showing of good 5 cause. Cf. Coalview Centralia, 2021 WL 2290842, *2.19 6 In light of the above, the Court concludes that motions to supplement the pleadings are 7 governed by the deadline to amend. A motion to supplement the pleadings filed after that deadline 8 implicitly seeks to modify the scheduling order, triggering the good cause analysis in Rule 16(b). 9 B. Good Cause Analysis 10 Having determined that Plaintiff’s motion to supplement is governed by the deadline to 11 amend, the Court turns to analyzing whether good cause exists to modify that deadline. Plaintiff 12 17 Some courts have noted that a need to supplement by its nature arises after the prior 13 pleading was filed. See Agua Caliente Band of Cahuilla Indians, 2020 WL 5775174, at *4. The Court does not find justification in such reasoning to exempt motions to supplement from the 14 scheduling order, as the need to amend should also generally arise after the prior pleading was filed. See Jackson v. Bank of Haw., 902 F.2d 1385, 1388 (9th Cir. 1990) (“Relevant to evaluating 15 the delay issue is whether the moving party knew or should have known the facts and theories raised by the amendment in the original pleading”). Moreover, applying the deadline to amend to 16 a motion to supplement does not necessarily doom a later-filed motion; it merely triggers a requirement that the movant establish sufficient justification for modifying the scheduling order. 17 18 The discovery cutoff expired on June 1, 2021, and the dispositive motion deadline 18 expired on June 30, 2021. See Docket No. 43. Defendant posits that granting the motion to supplement would require reopening the discovery cutoff to conduct depositions, reopening the 19 expert disclosure deadlines, and reopening the dispositive motion deadline. See Docket No. 72 at 15; see also Hearing Rec. (10/25/2021) at 1:26 - 1:27 p.m. Plaintiff did not present persuasive 20 argument to the contrary. 21 19 As an additional reason for treating supplementation as governed by the deadline to amend, the Court notes that it is not always self-evident whether a motion is appropriately 22 considered one seeking an amendment or a supplementation. Cf. Fair Isaac, 2009 WL 10677527, at *10-11. This case serves as an example. On or about January 9, 2020, State Farm tendered 23 $50,000 in underinsured motorist benefits. Docket No. 1-1 at ¶ 21. On February 24, 2020, Plaintiff demanded, inter alia, that State Farm pay the underinsured motorist coverage based on 24 $100,000/$300,000 liability coverage unless State Farm provided executed “drop down” forms. Docket No. 72-1 at 3-4. State Farm did not budge on its $50,000 number, however, which 25 prompted Plaintiff to file suit on May 29, 2020. Docket No. 1-1 at ¶ 22. Despite her prelitigation demand, Plaintiff insists that her current motion seeks to “supplement” the complaint based on her 26 counsel’s more recent demands for payment based on the Higher Limits. See, e.g., Docket No. 66 at 8-9. Defendant counters that Plaintiff is really seeking to amend her complaint given that she 27 could have pled a Higher Limits claim in her initial complaint. Hearing Rec. (10/25/2021) at 1:23 p.m. The Court need not engage in this technical parsing, however, because the deadline to amend 28 applies to the pending motion regardless of the moniker Plaintiff attaches to it. 1 argues that good cause exists based on counsel’s communications from January 24, 2021 to April 2 14, 2021, in which counsel demands additional payment based on a Higher Limits theory. See 3 Docket No. 66 at 8-10; see also Docket No. 66-2 (email chain). Plaintiff also relies on the fact 4 that State Farm disclosed the selection forms, which Plaintiff argues confirms her entitlement to 5 the higher limit, on March 18, 2021. See Docket No. 66 at 8-9. Defendant counters that this was 6 not a new issue at all, but rather Plaintiff’s counsel knew the basis for a Higher Limits claim well 7 before the complaint was filed. See Docket No. 72 at 11-13; see also Docket No. 72-1 at 3 n.1 8 (letter dated February 24, 2020). Particularly in light of that 2020 correspondence, Defendant 9 argues that Plaintiff was not diligent in pursuing the supplementation by seeking leave 17 months 10 later—after the expiration of the deadline to amend, after the discovery cutoff, and after the 11 dispositive motion deadline. See, e.g., Docket No. 72 at 11, 15. The Court agrees with Defendant. 12 It is undisputed that Plaintiff’s counsel was aware of the Higher Limits issue as of at least 13 February 24, 2020. Docket No. 72-1 at 3 n.1. Plaintiff proffers no explanation as to why she could 14 not have sought leave to add the allegations now at issue in the nine and a half months prior to the 15 deadline to amend. See Docket No. 17 at 2 (setting deadline to amend of December 2, 2020). 16 Indeed, Plaintiff has not meaningfully explained why the initial complaint (filed on May 29, 2020) 17 could not have encompassed this claim when it was filed. In light of these circumstances, Plaintiff 18 fails to satisfy her burden on the most basic level of showing why the current deadline could not 19 have been met. 20 Rather than tackle directly the timeline at issue, Plaintiff pins her showing of diligence on 21 the fact that State Farm provided the selection forms on March 18, 2021. See Docket No. 66-2 at 22 8. The Court is not persuaded that this disclosure changes the outcome here. As a threshold matter, 23 State Farm notes that Plaintiff obviously knew about the coverage in these policies based on her 24 own records and had specifically demanded the higher limit absent production of selection forms 25 showing otherwise. See Docket No. 72 at 11. Moreover, Plaintiff’s prelitigation demand made 26 clear her position that the Higher Limit was mandated unless State Farm provide an executed “drop 27 down” form. Docket No. 72-1 at 3 n.1. Hence, it would appear from Plaintiff’s own position that 28 she need not obtain the forms prior to pursuing a claim, but rather the failure of State Farm to 1 provide the form would be sufficient to do so. As State Farm posits in this case, Plaintiff could 2 have at a minimum pleaded her allegations regarding a Higher Limits claim in the initial complaint 3 on information and belief. Hearing Rec. (10/25/2021) at 1:21 - 1:22 p.m. Such circumstances 4 drastically undermine Plaintiff’s current argument that obtaining the selection form was the critical 5 moment in the timeline. 6 Even more significant, however, Plaintiff has not shown that she was diligent in obtaining 7 those forms. Plaintiff first alluded to these forms on February 24, 2020. Docket No. 72-1 at 3 n.1. 8 Plaintiff thereafter dropped the ball. Discovery opened in this matter on September 9, 2020. See 9 Docket No. 16 at 1 (identifying date of Rule 26(f) conference as September 9, 2020); see also Fed. 10 R. Civ. P. 26(d)(1). Plaintiff did not engage in any affirmative discovery. See Hearing Rec. (Feb. 11 22, 2021) at 2:07 p.m. Indeed, Plaintiff has not identified any efforts (formal or informal) to 12 substantiate a Higher Limits claim between the letter on February 24, 2020, and the expiration of 13 the deadline to amend on December 2, 2020.20 It seems clear that the Higher Limits issue simply 14 fell through the cracks during the interim period. Such circumstances weigh strongly against a 15 finding of diligence since “carelessness is not compatible with a finding of diligence and offers no 16 reason for a grant of relief.” Johnson, 975 F.2d at 609.21 17 Plaintiff’s assertion of diligence is also undermined by the delay in seeking leave to amend 18 upon the completion of the demands made to State Farm in 2021. These discussions ended as of 19 April 15, 2021, Docket No. 66-2 at 2, and Plaintiff filed a motion for summary judgment on the 20 issue on April 27, 2021, Docket No. 49. Plaintiff did not move to supplement the pleadings at that 21
22 20 Plaintiff’s counsel began informally demanding the selection forms again on January 24, 2021. Docket No. 66-2 at 20. Plaintiff’s counsel made this request only when his memory was 23 jogged as to the Higher Limits issue by reviewing Defendant’s summary judgment briefing. See Docket No. 66 at 3. Hence, the record is devoid of any efforts by Plaintiff to obtain these forms 24 from February 24, 2020 to January 24, 2021. 25 21 During this period, Plaintiff agreed to a discovery plan proposing a deadline to amend of December 2, 2020. Docket No. 16 at 2. Based on counsel’s letter of February 24, 2020, it was 26 foreseeable at that time that Plaintiff may desire to alter the pleadings to add allegations regarding the Higher Limit issue. This circumstance further undermines Plaintiff’s assertion of diligence. 27 See Jackson, 186 F.R.D. at 608 (courts may consider whether the failure to comply with a deadline arose from “the development of matters which could not have been reasonably foreseen or 28 anticipated at the time of the Rule 16 scheduling conference”). 1} time, however. Had she done so, the granting of such request would have been less disruptive to 2|| the case schedule because neither discovery nor the dispositive motion deadline had yet expired. See Docket No. 43. Plaintiff instead waited for the summary judgment briefing to run its course 4] before first seeking leave to supplement on July 12, 2021 (i.e., after both the discovery cutoff and 5| dispositive motion had expired). See Docket No. 62. 6 In short, the record shows that Plaintiff could have raised her allegations regarding the 7| Higher Limit issue in her initial complaint, but she did not do so. Plaintiff then submitted a 8|| discovery plan proposing a deadline to amend of December 2, 2020, but she did not do anything 9] in the interim to further uncover a basis to alter the pleadings with the Higher Limit issue by that 10] deadline. Instead, after reviewing dispositive briefing, Plaintiffs counsel restarted 11] communications with State Farm on the issue after the deadline to amend had expired. On March 12] 18, 2021, Plaintiff obtained from State Farm the selection forms, but did not seek to supplement 13] the pleadings for another four months. These circumstances do not establish diligence. 14 Accordingly, good cause is lacking to modify the scheduling order with respect to the 15]| deadline to amend.” 16] V. CONCLUSION 17 Plaintiff's motion to supplement requires sufficient justification to modify the scheduling 18] order, but the motion fails to establish good cause to do so. Accordingly, the Court DENIES 19] Plaintiff's motion to supplement. 20 IT IS SO ORDERED. 21 Dated: November 16, 2021 fo fe \ — po —~ Nancy J. Koppe\, 23 United States Mapistrate Judge 24 25 26 27), ——__________ ?? Because Plaintiff has failed to justify a modification of the scheduling order, the Court 28] need not opine on whether the Rule 15(d) standards have been satisfied for supplementing. 16