UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3
4 Jorge E. Ordonez Maluf, 5 Case No. 2:23-cv-00115-CDS-MDC
6 Plaintiff(s), ORDER DENYING PLAINTIFF’S MOTION vs. FOR LEAVE TO FILE DOCUMENT (ECF 7 NO. 112) AND GRANTING PLAINTIFF’S Bergelectric Corp, MOTION TO FILE ELECTRONICALLY 8 (ECF NO. 117) Defendant(s).
10 Pro se plaintiff Jorge E. Ordonez Maluf filed a Motion for Leave to File Document (“Motion to 11 Amend”)(ECF No. 112) and a Motion for Pro Se Litigant to File Electronically (“Motion to File 12 Electronically”) (ECF No. 117). The Court DENIES the Motion to Amend and GRANTS the Motion to 13 File Electronically. 14 I. BACKGROUND 15 16 This is an employment discrimination action case. ECF No. 8. Discovery is closed. ECF No. 40. 17 The Court granted summary judgment for defendant Bergelectric on plaintiff’s Americans with 18 Disabilities Act and Family and Medical Leave Act claims but denied the motion as to plaintiff’s Title 19 VII of the Civil Rights Act and Age Discrimination in Employment claims. ECF No. 88 at 22. Plaintiff 20 argues in his Motion to Amend that he wants to add claims for abuse of process and intentional infliction 21 of emotional distress because of alleged misconduct by defendant’s counsel last year. ECF No. 112. 22 Plaintiff argues in his Motion to File Electronically that he is concerned about the government shutdown 23 impeding his ability to file documents at the courthouse. ECF No. 117. Defendant argues that it would 24 be prejudiced if plaintiff amended his complaint at this late stage. ECF No. 120. 25 // II. DISCUSSION 1 A. Legal Standards 2 Federal Rule of Civil Procedure ("Rule") 16(b) states the district court must issue a scheduling 3 4 order that limits "the time to join other parties, amend the pleadings, complete discovery, and file 5 motions." Fed. R. Civ. P. 16(b)(3)(A). A scheduling order "may be modified only for good cause and 6 with the judge's consent." Fed. R. Civ. P. 16(b)(4). When the Court issues a scheduling order that 7 establishes a timetable to amend the pleadings, Rule 16 governs any amendments to the pleadings. 8 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). To allow for amendment under Rule 9 16, the moving party must show good cause for not having amended the pleadings before the time 10 specified in the scheduling order. Id. The good cause standard primarily considers the diligence of the 11 party seeking the amendment. Johnson v. Mammoth Recs., Inc., 975 F.2d 604, 609 (9th Cir. 1992). 12 Even if the good cause standard is met under Rule 16, the Court has the discretion to refuse 13 amendment if it finds reasons to deny leave to amend under Rule 15(a). Johnson, 975 F.2d at 610. "[A] 14 party may amend its pleading only with the opposing party's written consent or the court's leave." FRCP 15 15(a)(2). "Five factors are taken into account to assess the propriety of a motion for leave to amend: bad 16 17 faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has 18 previously amended the complaint." Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). Although 19 the general rule is that leave to amend should be "freely give[n] when justice so requires," delay is a 20 relevant—though non-dispositive—factor in the court's analysis. Lockheed Martin Corp. v. Network 21 Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999), see also Fed. R. Civ. P. 15(a)(2). Moreover, "it is the 22 consideration of prejudice to the opposing party that carries the greatest weight." Eminence Cap., LLC v. 23 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam). And "[a] need to reopen discovery and 24 25 therefore delay the proceedings supports a district court's finding of prejudice from a delayed motion to 1 amend the complaint." Lockheed Martin, 194 F.3d at 986. 2 While pro se litigants act without attorneys, they nevertheless remain obligated to follow the 3 4 same rules as represented parties. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) ("Although we 5 construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.") (per 6 curiam); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules 7 of procedure that govern other litigants."). Self-representation is not an excuse for noncompliance with 8 the court's rules and orders. See Swimmer v. I.R.S., 811 F.2d 1343, 1344 (9th Cir. 1987) ("[i]gnorance of 9 court rules does not constitute excusable neglect, even if the litigant appears pro se.") (citation omitted)). 10 Federal Rule of Civil Procedure 6(b)(1) provides that the court may, for good cause, extend a deadline if 11 the party requests the extension before the original deadline expires. 12 Under Local Rule IC 2-1(b), a pro se litigant may request the Court's authorization to register as 13 a filer in a specific case. Per LR IA 10-1(b), “[d]ocuments filed electronically must be filed in a 14 searchable Portable Document Format (PDF)[.]” 15 16 B. Analysis 17 While plaintiff is pro se, he must still follow the rules, and he has not done so here. Plaintiff 18 alleges that in his Motion to Amend that he discovered counsel’s alleged misconduct in July 2024. ECF 19 No. 112. Plaintiff has not shown good cause under Rule 16. Plaintiff has not been reasonably diligent in 20 moving to amend as he moved over a year after he learned of what he describes as counsel’s 21 misconduct, and after the close of discovery. Regarding the Rule 15 factors, allowing plaintiff to file an 22 amended complaint at this late stage would unduly delay the litigation, which has been pending since 23 2023, and cause significant prejudice to defendant as discovery would need to be reopened and further 24 extended to address the new claims. As prejudice to the opposing party carries the greatest weight, on 25 balance, the Court finds that prejudice against the defendant here is great. Plaintiff does not meet the 1 standard for leave to amend under either Rule 16 or 15. 2 Although the Court did not close during the government shut down and the government has since 3 4 re-opened, the Court grants plaintiff’s Motion to File Electronically. Plaintiff shows good cause for the 5 opportunity to file electrically. 6 7 8 9
16 17 18 19 20 21
24 // 25 IT IS ORDERED that:
5 1. Plaintiff Jorge E. Ordonez Maluf’s Motion for Leave to File Document (ECF No. 112) is
3 DENIED. 4 2. Plaintiff's Motion for Pro Se Litigant to File Electronically (ECF No. 117) is GRANTED. 5 3. Plaintiff is authorized to register as a filer in this case. 6 4.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3
4 Jorge E. Ordonez Maluf, 5 Case No. 2:23-cv-00115-CDS-MDC
6 Plaintiff(s), ORDER DENYING PLAINTIFF’S MOTION vs. FOR LEAVE TO FILE DOCUMENT (ECF 7 NO. 112) AND GRANTING PLAINTIFF’S Bergelectric Corp, MOTION TO FILE ELECTRONICALLY 8 (ECF NO. 117) Defendant(s).
10 Pro se plaintiff Jorge E. Ordonez Maluf filed a Motion for Leave to File Document (“Motion to 11 Amend”)(ECF No. 112) and a Motion for Pro Se Litigant to File Electronically (“Motion to File 12 Electronically”) (ECF No. 117). The Court DENIES the Motion to Amend and GRANTS the Motion to 13 File Electronically. 14 I. BACKGROUND 15 16 This is an employment discrimination action case. ECF No. 8. Discovery is closed. ECF No. 40. 17 The Court granted summary judgment for defendant Bergelectric on plaintiff’s Americans with 18 Disabilities Act and Family and Medical Leave Act claims but denied the motion as to plaintiff’s Title 19 VII of the Civil Rights Act and Age Discrimination in Employment claims. ECF No. 88 at 22. Plaintiff 20 argues in his Motion to Amend that he wants to add claims for abuse of process and intentional infliction 21 of emotional distress because of alleged misconduct by defendant’s counsel last year. ECF No. 112. 22 Plaintiff argues in his Motion to File Electronically that he is concerned about the government shutdown 23 impeding his ability to file documents at the courthouse. ECF No. 117. Defendant argues that it would 24 be prejudiced if plaintiff amended his complaint at this late stage. ECF No. 120. 25 // II. DISCUSSION 1 A. Legal Standards 2 Federal Rule of Civil Procedure ("Rule") 16(b) states the district court must issue a scheduling 3 4 order that limits "the time to join other parties, amend the pleadings, complete discovery, and file 5 motions." Fed. R. Civ. P. 16(b)(3)(A). A scheduling order "may be modified only for good cause and 6 with the judge's consent." Fed. R. Civ. P. 16(b)(4). When the Court issues a scheduling order that 7 establishes a timetable to amend the pleadings, Rule 16 governs any amendments to the pleadings. 8 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). To allow for amendment under Rule 9 16, the moving party must show good cause for not having amended the pleadings before the time 10 specified in the scheduling order. Id. The good cause standard primarily considers the diligence of the 11 party seeking the amendment. Johnson v. Mammoth Recs., Inc., 975 F.2d 604, 609 (9th Cir. 1992). 12 Even if the good cause standard is met under Rule 16, the Court has the discretion to refuse 13 amendment if it finds reasons to deny leave to amend under Rule 15(a). Johnson, 975 F.2d at 610. "[A] 14 party may amend its pleading only with the opposing party's written consent or the court's leave." FRCP 15 15(a)(2). "Five factors are taken into account to assess the propriety of a motion for leave to amend: bad 16 17 faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has 18 previously amended the complaint." Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). Although 19 the general rule is that leave to amend should be "freely give[n] when justice so requires," delay is a 20 relevant—though non-dispositive—factor in the court's analysis. Lockheed Martin Corp. v. Network 21 Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999), see also Fed. R. Civ. P. 15(a)(2). Moreover, "it is the 22 consideration of prejudice to the opposing party that carries the greatest weight." Eminence Cap., LLC v. 23 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam). And "[a] need to reopen discovery and 24 25 therefore delay the proceedings supports a district court's finding of prejudice from a delayed motion to 1 amend the complaint." Lockheed Martin, 194 F.3d at 986. 2 While pro se litigants act without attorneys, they nevertheless remain obligated to follow the 3 4 same rules as represented parties. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) ("Although we 5 construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.") (per 6 curiam); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules 7 of procedure that govern other litigants."). Self-representation is not an excuse for noncompliance with 8 the court's rules and orders. See Swimmer v. I.R.S., 811 F.2d 1343, 1344 (9th Cir. 1987) ("[i]gnorance of 9 court rules does not constitute excusable neglect, even if the litigant appears pro se.") (citation omitted)). 10 Federal Rule of Civil Procedure 6(b)(1) provides that the court may, for good cause, extend a deadline if 11 the party requests the extension before the original deadline expires. 12 Under Local Rule IC 2-1(b), a pro se litigant may request the Court's authorization to register as 13 a filer in a specific case. Per LR IA 10-1(b), “[d]ocuments filed electronically must be filed in a 14 searchable Portable Document Format (PDF)[.]” 15 16 B. Analysis 17 While plaintiff is pro se, he must still follow the rules, and he has not done so here. Plaintiff 18 alleges that in his Motion to Amend that he discovered counsel’s alleged misconduct in July 2024. ECF 19 No. 112. Plaintiff has not shown good cause under Rule 16. Plaintiff has not been reasonably diligent in 20 moving to amend as he moved over a year after he learned of what he describes as counsel’s 21 misconduct, and after the close of discovery. Regarding the Rule 15 factors, allowing plaintiff to file an 22 amended complaint at this late stage would unduly delay the litigation, which has been pending since 23 2023, and cause significant prejudice to defendant as discovery would need to be reopened and further 24 extended to address the new claims. As prejudice to the opposing party carries the greatest weight, on 25 balance, the Court finds that prejudice against the defendant here is great. Plaintiff does not meet the 1 standard for leave to amend under either Rule 16 or 15. 2 Although the Court did not close during the government shut down and the government has since 3 4 re-opened, the Court grants plaintiff’s Motion to File Electronically. Plaintiff shows good cause for the 5 opportunity to file electrically. 6 7 8 9
16 17 18 19 20 21
24 // 25 IT IS ORDERED that:
5 1. Plaintiff Jorge E. Ordonez Maluf’s Motion for Leave to File Document (ECF No. 112) is
3 DENIED. 4 2. Plaintiff's Motion for Pro Se Litigant to File Electronically (ECF No. 117) is GRANTED. 5 3. Plaintiff is authorized to register as a filer in this case. 6 4. Plaintiff shall familiarize himself with the Local Rules pertaining to filing electronically, 7 including filing documents in a searchable PDF format. See LR IC 2-1, 2-2, and LR IA 10- 8 1(b). ° 5. Plaintiff must submit a completed registration form available on the Court's website. 6. Plaintiff shall comply with the following procedures to activate a CM/ECF account: a. Plaintiff must become familiar with the Electronic Filing procedures and events menus, obtain a PACER account, and obtain an CM/ECF login and password from
4 the District of Nevada by submitting a completed registration form on the Court’s
15 website. 16 b. Plaintiff must read and comply with the guidelines for e-filing available both on the 17 Court's website and here at https://perma.cc/2NCZ-T2WX 18 IT IS SO ORDERED. 19 Dated November 17, 2025 ff “7 ae
09 Z if non Maxingffano Dj Couvi Mer III L nited Sy > Magistfatewtidge 23 24 25
NOTICE 1 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 2 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 3 4 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 5 may determine that an appeal has been waived due to the failure to file objections within the specified 6 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 7 objections within the specified time and (2) failure to properly address and brief the objectionable issues 8 waives the right to appeal the District Court's order and/or appeal factual issues from the order of the 9 District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. 10 Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR IA 3-1, the plaintiff must immediately file 11 written notification with the court of any change of address. The notification must include proof of 12 service upon each opposing party’s attorney, or upon the opposing party if the party is unrepresented by 13 counsel. Failure to comply with this rule may result in dismissal of the action. 14 15 16 17 18 19 20 21 22 23 24 25