Norcal Home Design Inc v. Code Blue 360, LLC

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NORCAL HOME DESIGN, INC., a No. 2:21-cv-00491-JAM-DMC California corporation, 12 Plaintiff, 13 ORDER DENYING THIRD-PARTY v. DEFENDANT FORNESS CONSTRUCTION, 14 INC. DBA QUALITY PROPERTY CODE BLUE 360, LLC, a RESTORATION’S MOTION FOR LEAVE 15 Delaware limited liability TO FILE A CROSS-COMPLAINT company, et al., AGAINST PLAINTIFF 16 Defendants, 17

18 And related cross-actions.

19 20 Before the Court is Third-Party Defendant Forness 21 Construction, Inc. DBA Quality Property Restoration’s (“Third- 22 Party Defendant Forness”) motion for leave to file a cross- 23 complaint against Plaintiff Norcal Home Design, Inc. 24 (“Plaintiff”). Mot. for Leave (“Mot.”), ECF No. 87. For the 25 reasons set forth below, the motion is DENIED. 26 /// 27 /// 28 /// 1 I. OPINION 2 On February 15, 2024, Third-Party Defendant Forness filed a 3 motion for leave to file a cross-complaint against Plaintiff 4 Norcal Home Design, Inc. (“Plaintiff”). See Mot. Plaintiff 5 opposed the motion, Opp’n, ECF No. 88, and Third-Party Defendant 6 Forness replied. Reply, ECF No. 92. 7 Pursuant to the Court’s Pretrial Scheduling Order of 8 January 6, 2022, “[n]o further joinder of parties or amendments 9 to pleadings is permitted except with leave of court, good cause 10 having been shown.” Pretrial Scheduling Order (“PSO”), ECF No. 11 30. Although parts of this PSO were modified several times, see 12 Dkt., the most recent on December 11, 2023, see ECF No. 80, the 13 portion that is applicable here was unaffected by the subsequent 14 modifications. Thus, unless amended, the PSO precludes Third- 15 Party Defendant Forness’ motion. 16 After a pleading deadline set in the pretrial scheduling 17 order has passed, a party must first amend the scheduling order 18 under Rule 16 of the Federal Rules of Civil Procedure (“Rules”) 19 before it seeks leave to amend the pleadings. Johnson v. Mammoth 20 Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992); Akey v. 21 Placer Cnty., No. 2:14-CV-2402 KJM DB, 2017 WL 1831944, at *6 22 (E.D. Cal. May 8, 2017). Here, Third-Party Defendant Forness has 23 not specifically requested to modify the PSO. See generally 24 Mot.; Dkt. Although the Ninth Circuit has “suggested” that the 25 failure to first modify the scheduling order precludes a motion 26 to amend the pleadings, it has not mandated such a rigid rule. 27 See Johnson, 975 F.2d at 608-09. Thus, courts in this Circuit 28 have construed a motion for leave as one requesting a 1 modification to the pretrial scheduling order, particularly when 2 doing so would be more efficient than dismissing the motion 3 without prejudice. Akey, 2017 WL 1831944, at *7; Sharp v. Balboa 4 Islands, LLC, No. 11-CV-427, 2012 WL 13176036, at *2 (S.D. Cal. 5 June 20, 2012). Accordingly, the Court construes Third-Party 6 Defendant Forness’ motion as a request to modify the PSO. 7 A pretrial scheduling order entered before the final 8 pretrial conference “may be modified only for good cause and with 9 the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “A scheduling 10 order is not ‘a frivolous piece of paper, idly entered, which can 11 be cavalierly disregarded by counsel without peril.’” Akey, 2017 12 WL 1831944, at *3 (quoting Gestetner Corp. v. Case Equip. Co., 13 108 F.R.D. 138, 141 (D. Me. 1985)). “Unlike Rule 15(a)’s liberal 14 amendment policy which focuses on the bad faith of the party 15 seeking to interpose an amendment and the prejudice to the 16 opposing party, Rule 16(b)’s ‘good cause’ standard primarily 17 considers the diligence of the party seeking the amendment.” 18 Johnson, 975 F.2d at 609. “The district court may modify the 19 pretrial schedule ‘if it cannot reasonably be met despite the 20 diligence of the party seeking the extension.’” Id. (quoting the 21 advisory committee’s notes to Fed. R. Civ. P. 16). “[T]he focus 22 of the inquiry is upon the moving party’s reasons for seeking 23 modification.” Id. “If [the movant] was not diligent, the 24 inquiry should end.” Id. 25 On July 27, 2023, Third-Party Defendant Forness filed a 26 complaint for indemnity against Plaintiff in Butte County 27 Superior Court. See Exh. C to Mot., ECF No. 87 at 25-32. The 28 proposed cross-complaint for indemnity is based on similar, if em EI III EIDE III IIE III EEO IORI IED) IO

1 not identical, grounds as the state court action. Mot. at 4; 2 Exh. A to Mot., ECF No. 87 at 13-18. Third-Party Defendant 3 Forness was therefore aware of its claim for indemnity against 4 Plaintiff for approximately seven months before it sought leave 5 to amend the PSO. In Johnson, the Ninth Circuit upheld a 6 | district court’s denial of a motion to modify a scheduling order 7 when it was made four months after the deadline had expired. 8 Johnson, 975 F.2d at 610. Third-Party Defendant Forness states 9 it inadvertently failed to previously amend the PSO, Mot. at 2, 10 | but “carelessness is not compatible with a finding of diligence 11 and offers no reason for a grant of relief.” Johnson, 975 F.2d 12 |} at 609. 13 Il. ORDER 14 Third-Party Defendant Forness’ motion for leave to file a 15 cross-complaint against Plaintiff is DENIED. 16 IT IS SO ORDERED. 17 Dated: April 4, 2024 18 : cp, JOHN A. MENDEZ 20 SENIOR UNITED*STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28