1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ALEX MONTOYA; REX SHIRLEY; Case No.: 19cv0054 JM(BGS) PHILIP PRESSEL; and AARON 11 GRESSON, individually, and on behalf of ORDER ON MOTION FOR LEAVE 12 all others similarly situated, TO FILE THIRD AMENDED COMPLAINT 13 Plaintiffs, 14 v. 15 CITY OF SAN DIEGO, a public entity; and DOES 1-100, 16 Defendants. 17 18 This matter comes before the court on Plaintiffs’ Motion for Leave to File a Third 19 Amended Complaint. (Doc. No. 105.) The motion has been fully briefed and the court 20 finds it suitable for determination on the papers submitted and without oral argument in 21 accordance with Civil Local Rule 7.1(d)(1). 22 I. Background 23 On January 9, 2019, Plaintiffs filed a putative class action complaint asserting claims 24 for violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., 25 section 504 of the Rehabilitation Act, 29 U.S.C. § 794, et seq., California Civil Code 26 section 51, et seq., (the “Unruh Act”), California Civil Code section 54, et seq., (the 27 “Disabled Persons Act”); California Government Code section 4450, et seq., and California 28 Government Code section 11135, et seq. (Doc. No. 1.) Plaintiffs brought claims against 1 the City of San Diego (the “City”) and the owners/operators of the dockless electrical 2 vehicles, (the “Scooter Defendants”.) 3 On March 21, 2019, Plaintiffs filed their First Amended Class Action Complaint 4 (“FAC”). (Doc. No. 14.) The FAC alleges that Plaintiffs, who are individuals with 5 disabilities, have found their access to San Diego’s sidewalks diminished by the 6 proliferation of dockless electric vehicles currently in use in the City. (FAC ¶ 1, 12, 13, 7 14, 15.) Further, the FAC alleges that as usage and abandonment of these vehicles and the 8 speed at which they travel increases, Plaintiffs are denied safe, equal and full access to the 9 sidewalks. (Id. at ¶ 41.) 10 All Defendants filed motions to dismiss the FAC. (Doc. Nos. 30, 56, 57, 62, 63.) 11 On January 21, 2020, the court granted all of the motions brought by the individual Scooter 12 Defendants but denied the City’s motion to dismiss. (Doc. No. 89.) On February 1, 2020, 13 City filed its answer to the FAC. (Doc. No. 91.) Plaintiffs chose not to amend their claims 14 against the Scooter Defendants. 15 On April 13, 2020, Plaintiffs and City filed a Joint Motion for Leave to File a Second 16 Amended Complaint under Rule 15(a) of the Federal Rule of Civil Procedure. (Doc. No. 17 95.) The court duly granted the request. (Doc. No. 96.) On April 15, 2020, the Second 18 Amended Complaint (“SAC”) was filed. City filed its answer to the SAC on May 8, 2020. 19 (Doc. No. 102.) 20 The SAC contains allegations like its earlier iterations and includes claims against 21 City for violations of Title II of the ADA, section 504 of the Rehabilitation Act, the Unruh 22 Act, the Disabled Persons Act, California Government Code section 4450, et seq., and 23 California Government Code section 11135, et seq. (SAC.) 24 On May 6, 2020, Magistrate Judge Skomal issued a scheduling order directing that 25 “any motion to join other parties, to amend the pleadings, or to file additional pleadings 26 shall be filed by May 22, 2020.” (Doc. No.101 at ¶ 1.) Neither party filed any motions 27 responsive to this directive. 28 1 On October 1, 2020, Plaintiffs filed a Motion for Leave to File Third Amended Class 2 Action Complaint. (Doc. No. 105.) 3 Plaintiffs now seek to amend their complaint to add a single cause of action for state 4 law pre-emption, based on the City’s dockless vehicle ordinance standing in conflict with 5 provisions of the California Vehicle Code. (Doc. No. 105-1 at 3.) The City objects to the 6 addition of the new claim. (Doc. No. 110). 7 II. Discussion 8 Plaintiffs seek leave to amend under Federal Rule of Civil Procedure 15(a), which 9 states “[t]he court shall freely give when justice so requires.” Fed. R. Civ. P. 15(a)(2). 10 However, if a pretrial scheduling order has established a timetable for amending the 11 pleadings, and the deadline has expired, then plaintiff must show good cause for not having 12 amended the complaint before the time specified. Coleman v. Quaker Oats Co., 232 F.3d 13 1271, 1294 (9th Cir. 2000). 14 Plaintiffs filed their motion just shy of five months past the deadline laid out by 15 Judge Skomal and therefore must establish good cause for modification to the scheduling 16 order to allow their amendment. Fed. R. Civ. P. 16(b)(4). 17 Since a pretrial scheduling order has been entered, the court will look to see if “the 18 moving party [has] demonstrated diligence under Rule 16” before applying “the standard 19 under Rule 15 to determine whether the amendment was proper.” Hood v. Hartford Life 20 & Acc. Ins. Co., 567 F. Supp. 2d 1221, 1224 (E.D. Cal. 2008); see also Johnson v. 21 Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). 22 A. Good Cause Under Rule 16 and Excusable Neglect Under Rule 6 23 The Rule 16 good cause standard focuses on the “reasonable diligence” of the 24 moving party. Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir. 2007); Coleman, 25 232 F.3d at 1294-95. The moving party must establish good cause by showing that 26 “(1) that [he or she] was diligent in assisting the court in creating a workable Rule 16 order; 27 (2) that [his or her] noncompliance with a Rule 16 deadline occurred or will occur, 28 1 matters which could not have been reasonably foreseen or anticipated at the time of the 2 Rule 16 scheduling conference; and (3) that [he or she] was diligent in seeking amendment 3 of the Rule 16 order, once it became apparent that [he or she] could not comply with the 4 order.” Hood, 567 F. Supp. 2d at 1224 (citations omitted). “[T]he focus of the inquiry is 5 upon the moving party’s reasons for seeking modification.” Mammoth Recreations, 975 6 F.2d at 609. 7 In addition to demonstrating good cause, a party moving to amend a pleading after 8 the deadline has passed must also demonstrate excusable neglect. Mireles v. Paragon Sys., 9 Inc., 2014 WL 575713, at *2 (S.D. Cal Feb 11. 2014); Fed. R. Civ. P. 6(b)(1). The Supreme 10 Court has established a four-part balancing test for determining whether there has been 11 excusable neglect. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 12 395 (1993). The four factors to be considered are: (1) the danger of the prejudice to the 13 non-moving party; (2) the length of the delay and its potential impact on judicial 14 proceedings; (3) the reason for the delay, including whether it was within the reasonable 15 control of the movant; and (4) whether the moving party’s conduct was in good faith. Id.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ALEX MONTOYA; REX SHIRLEY; Case No.: 19cv0054 JM(BGS) PHILIP PRESSEL; and AARON 11 GRESSON, individually, and on behalf of ORDER ON MOTION FOR LEAVE 12 all others similarly situated, TO FILE THIRD AMENDED COMPLAINT 13 Plaintiffs, 14 v. 15 CITY OF SAN DIEGO, a public entity; and DOES 1-100, 16 Defendants. 17 18 This matter comes before the court on Plaintiffs’ Motion for Leave to File a Third 19 Amended Complaint. (Doc. No. 105.) The motion has been fully briefed and the court 20 finds it suitable for determination on the papers submitted and without oral argument in 21 accordance with Civil Local Rule 7.1(d)(1). 22 I. Background 23 On January 9, 2019, Plaintiffs filed a putative class action complaint asserting claims 24 for violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., 25 section 504 of the Rehabilitation Act, 29 U.S.C. § 794, et seq., California Civil Code 26 section 51, et seq., (the “Unruh Act”), California Civil Code section 54, et seq., (the 27 “Disabled Persons Act”); California Government Code section 4450, et seq., and California 28 Government Code section 11135, et seq. (Doc. No. 1.) Plaintiffs brought claims against 1 the City of San Diego (the “City”) and the owners/operators of the dockless electrical 2 vehicles, (the “Scooter Defendants”.) 3 On March 21, 2019, Plaintiffs filed their First Amended Class Action Complaint 4 (“FAC”). (Doc. No. 14.) The FAC alleges that Plaintiffs, who are individuals with 5 disabilities, have found their access to San Diego’s sidewalks diminished by the 6 proliferation of dockless electric vehicles currently in use in the City. (FAC ¶ 1, 12, 13, 7 14, 15.) Further, the FAC alleges that as usage and abandonment of these vehicles and the 8 speed at which they travel increases, Plaintiffs are denied safe, equal and full access to the 9 sidewalks. (Id. at ¶ 41.) 10 All Defendants filed motions to dismiss the FAC. (Doc. Nos. 30, 56, 57, 62, 63.) 11 On January 21, 2020, the court granted all of the motions brought by the individual Scooter 12 Defendants but denied the City’s motion to dismiss. (Doc. No. 89.) On February 1, 2020, 13 City filed its answer to the FAC. (Doc. No. 91.) Plaintiffs chose not to amend their claims 14 against the Scooter Defendants. 15 On April 13, 2020, Plaintiffs and City filed a Joint Motion for Leave to File a Second 16 Amended Complaint under Rule 15(a) of the Federal Rule of Civil Procedure. (Doc. No. 17 95.) The court duly granted the request. (Doc. No. 96.) On April 15, 2020, the Second 18 Amended Complaint (“SAC”) was filed. City filed its answer to the SAC on May 8, 2020. 19 (Doc. No. 102.) 20 The SAC contains allegations like its earlier iterations and includes claims against 21 City for violations of Title II of the ADA, section 504 of the Rehabilitation Act, the Unruh 22 Act, the Disabled Persons Act, California Government Code section 4450, et seq., and 23 California Government Code section 11135, et seq. (SAC.) 24 On May 6, 2020, Magistrate Judge Skomal issued a scheduling order directing that 25 “any motion to join other parties, to amend the pleadings, or to file additional pleadings 26 shall be filed by May 22, 2020.” (Doc. No.101 at ¶ 1.) Neither party filed any motions 27 responsive to this directive. 28 1 On October 1, 2020, Plaintiffs filed a Motion for Leave to File Third Amended Class 2 Action Complaint. (Doc. No. 105.) 3 Plaintiffs now seek to amend their complaint to add a single cause of action for state 4 law pre-emption, based on the City’s dockless vehicle ordinance standing in conflict with 5 provisions of the California Vehicle Code. (Doc. No. 105-1 at 3.) The City objects to the 6 addition of the new claim. (Doc. No. 110). 7 II. Discussion 8 Plaintiffs seek leave to amend under Federal Rule of Civil Procedure 15(a), which 9 states “[t]he court shall freely give when justice so requires.” Fed. R. Civ. P. 15(a)(2). 10 However, if a pretrial scheduling order has established a timetable for amending the 11 pleadings, and the deadline has expired, then plaintiff must show good cause for not having 12 amended the complaint before the time specified. Coleman v. Quaker Oats Co., 232 F.3d 13 1271, 1294 (9th Cir. 2000). 14 Plaintiffs filed their motion just shy of five months past the deadline laid out by 15 Judge Skomal and therefore must establish good cause for modification to the scheduling 16 order to allow their amendment. Fed. R. Civ. P. 16(b)(4). 17 Since a pretrial scheduling order has been entered, the court will look to see if “the 18 moving party [has] demonstrated diligence under Rule 16” before applying “the standard 19 under Rule 15 to determine whether the amendment was proper.” Hood v. Hartford Life 20 & Acc. Ins. Co., 567 F. Supp. 2d 1221, 1224 (E.D. Cal. 2008); see also Johnson v. 21 Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). 22 A. Good Cause Under Rule 16 and Excusable Neglect Under Rule 6 23 The Rule 16 good cause standard focuses on the “reasonable diligence” of the 24 moving party. Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir. 2007); Coleman, 25 232 F.3d at 1294-95. The moving party must establish good cause by showing that 26 “(1) that [he or she] was diligent in assisting the court in creating a workable Rule 16 order; 27 (2) that [his or her] noncompliance with a Rule 16 deadline occurred or will occur, 28 1 matters which could not have been reasonably foreseen or anticipated at the time of the 2 Rule 16 scheduling conference; and (3) that [he or she] was diligent in seeking amendment 3 of the Rule 16 order, once it became apparent that [he or she] could not comply with the 4 order.” Hood, 567 F. Supp. 2d at 1224 (citations omitted). “[T]he focus of the inquiry is 5 upon the moving party’s reasons for seeking modification.” Mammoth Recreations, 975 6 F.2d at 609. 7 In addition to demonstrating good cause, a party moving to amend a pleading after 8 the deadline has passed must also demonstrate excusable neglect. Mireles v. Paragon Sys., 9 Inc., 2014 WL 575713, at *2 (S.D. Cal Feb 11. 2014); Fed. R. Civ. P. 6(b)(1). The Supreme 10 Court has established a four-part balancing test for determining whether there has been 11 excusable neglect. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 12 395 (1993). The four factors to be considered are: (1) the danger of the prejudice to the 13 non-moving party; (2) the length of the delay and its potential impact on judicial 14 proceedings; (3) the reason for the delay, including whether it was within the reasonable 15 control of the movant; and (4) whether the moving party’s conduct was in good faith. Id. 16 The court finds that although there is nothing in the record to suggest that Plaintiffs 17 have not been “reasonably diligent” in investigating and pursuing their original claims, the 18 same cannot be said for this new claim. Plaintiffs contend they only “recently became 19 aware” of the San Diego Municipal Code Ordinance (“SDM Ordinance”) regulating 20 dockless vehicles and it’s purported direct conflict with two provisions of the California 21 Vehicle Code. But, the ordinance Plaintiffs wish to challenge became effective on June 22 16, 2019. Furthermore, during the motions to dismiss briefings, the provisions of the 23 California Vehicle Code were discussed by all Defendants and this very same SDM 24 Ordinance1 was the subject of a Request to Strike City’s Purported Supplemental Authority 25 filed by Plaintiffs on July 8, 2019. (See Doc. No. 78; see also Doc. No. 77-1). 26 27 1 Chapter 8 of the San Diego Municipal Code, added new division 3, titled “Shared 28 1 Although Plaintiffs’ opening brief was silent regarding the Rule 16 standard, their 2 reply attempts to demonstrate good cause by stating they “engaged in informal discovery 3 through extensive settlement negotiations with the City, discussing the applicability of the 4 vehicle code to the SDM ordinance and Plaintiffs’ claims regarding the SDM ordinance’s 5 endorsement of storing vehicles on the public rights of way.” (Doc. No. 112 at 6.) The 6 court is not persuaded. Plaintiffs provide plenty of detail regarding the settlement 7 negotiations occurring between the parties, yet little is provided in the way of an 8 explanation as to why this new claim was not included in the SAC filed on April 15, 2020. 9 Moreover, counsel assumed the risk of holding this new claim out as leverage during 10 settlement negotiations and chose to pursue this litigation strategy independently. 11 The court also finds that, having considered the four factors laid out in Pioneer, 12 Plaintiffs have not established there was excusable neglect surrounding the non- 13 compliance with the scheduled deadline. At first blush, an order permitting Plaintiffs to 14 file a motion to amend will not cause any significant prejudice to Defendant as Plaintiffs’ 15 anticipated amendment relates to the same set of facts that were at issue in the original 16 complaint and will therefore not require voluminous discovery, but the Preemption Cause 17 of Action would be subject to a Rule 12(b)(6) motion and would further delay this 18 litigation. The authorized delay would also have an impact on the length of the judicial 19 proceedings, as a trial date has been set, fact discovery is set to close in a matter of weeks 20 and class certification briefs are due soon. The court is also not persuaded that Plaintiffs 21 could not have complied with the earlier deadline of May 22, 2020 by including the new 22 claim in the Second Amended Complaint because the information was known to them then. 23 There is, however, no evidence of bad faith by the Plaintiffs that would weigh against 24 allowing an amendment to the SAC. 25 Accordingly, the court finds that Plaintiffs have neither demonstrated the good cause 26 nor the excusable neglect necessary to modify the scheduling order. Because Plaintiffs 27 have failed to meet the standard set forth in Rule 16, the court will not address the 28 1 || appropriateness of amendment under Rule 15. See Mammoth Recreations, 975 F.2d at 609 2 || (“if [the] party was not diligent, the inquiry should end.”). 3 Conclusion 4 In accordance with the above, Plaintiffs’ motion for leave to file a third amended 5 ||complaint is DENIED. (Doc. No. 105.) 6 IT IS SO ORDERED. 7 || Dated: January 19, 2021 8 plteagh Mate 9 on. Jeffrey/T. Miller nited States District Judge 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28