1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Gary Pearlmutter, No. CV-19-08344-PCT-DJH
10 Plaintiff, ORDER
11 v.
12 County of Coconino, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff Gary Pearlmutter’s Motion to Amend 16 Complaint and Scheduling Order (Doc. 30). Plaintiff moves to add a new party.1 17 Defendants Coconino County, James Jayne, and Marie Peoples filed their Response in 18 Opposition (Doc. 32), and Plaintiff filed a Reply (Doc. 38). The matter is fully briefed. The 19 Court now issues its ruling. 20 I. Background 21 Plaintiff Gary Pearlmutter bases his claims on his employment termination. (Doc. 22 20). Defendant Coconino County employed Plaintiff from September 1993 until his 23 dismissal in December 2018. (Doc. 20 at ¶ 12). In December 2018, Plaintiff, then Director 24 of the Legal Defender’s Office, received a notice of dismissal, which he could review only 25 briefly. (Doc. 38 at 3). 26 About a year later, in December 2019, Plaintiff made a public records request to
27 1 According to LRCiv 15.1(a), a proposed amended pleading “must indicate in what respect it differs from the pleading which it amends, by bracketing or striking through the text to 28 be deleted and underlining the text to be added.” The Court notes that no such redlined version was submitted. 1 gather information relating to his termination. (Doc. 30 at 7). Plaintiff received the 2 responsive document production sporadically, but it did not include the notice of dismissal. 3 (Id.) On December 18, 2019, Plaintiff filed his Complaint against Coconino County, James 4 Jayne, and Marie Peoples. (Doc. 1). The Court issued a Scheduling Order on May 27, 2020. 5 (Doc. 15). The deadline to join parties and to amend pleadings was set to July 27, 2020. 6 (Id.) Plaintiff filed his First Amended Complaint before the deadline, on July 14, 2020. 7 (Doc. 20). 8 The parties exchanged Mandatory Initial Discovery Pilot (“MIDP”) responses on 9 June 16, 2020. (Docs. 16; 17). Importantly, Defendant Coconino County’s MIDP 10 production included the notice of dismissal. (Doc. 30 at 8). The notice of dismissal was 11 signed by Art Babbott, Chairman of the Coconino Board of Supervisors (“Board”). (Id.) 12 Until that time, Plaintiff believed that it was James Jayne who signed the notice of 13 dismissal, not Mr. Babbott. (Doc. 38 at 3). To further investigate Mr. Babbott’s 14 involvement in the termination decision, Plaintiff requested the document’s metadata. 15 (Doc. 30 at 8). Plaintiff received the metadata in early to mid-August 2020. (Id.) In 16 November 2020, Plaintiff continued his investigation into Mr. Babbott’s involvement by 17 serving discovery on all Defendants. (Id.) 18 On December 21, 2020, Plaintiff sought to join Mr. Babbott as a defendant with the 19 filing of his Motion to Amend Complaint and Scheduling Order. (Doc. 30). On the same 20 day, Plaintiff filed a separate action against Mr. Babbott to avoid potential statute of 21 limitation issues. (Doc. 30 at 8). 22 II. Legal Standard The narrow issue before the Court is whether Plaintiff acted diligently in seeking to 23 amend his Complaint to add a new party. As Plaintiff acknowledges, (Doc. 30 at 6), his 24 request to amend the Complaint and in turn modify the Scheduling Order must be analyzed 25 under Federal Rule of Civil Procedure 16(b)(4). Rule 16 states that “[a] schedule may be 26 modified only for good cause.” The primary focus in deciding whether good cause exists 27 is the moving party’s diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 28 (9th Cir. 1992)). “The district court may modify the pretrial schedule ‘if it cannot 1 reasonably be met despite the diligence of the party seeking the extension.’” Id. (quoting 2 Fed. R. Civ. P. 16 advisory committee’s notes to 1983 amendment). “[T]he focus of the 3 inquiry is upon the moving party’s reasons for seeking modification.” Johnson, 975 F.2d 4 at 609. Also, “[a]lthough the existence or degree of prejudice to the party opposing the 5 modification might supply additional reasons to deny a motion,” fundamentally, “[i]f that 6 party was not diligent, the inquiry should end.” Id. (emphasis added). 7 The due diligence standard is a stringent requirement. See, e.g., Buel v. City & 8 County of San Francisco, 166 F. App’x 901, 903 (9th Cir. 2006) (denying leave to amend 9 where the plaintiff was aware of the need to seek leave to amend at least two months before 10 the deadline for amendments and failed to seek leave at that time); Schwerdt v. Int’l Fid. 11 Ins. Co., 28 F. App’x 715, 719, 720 (9th Cir. 2002) (denying leave to amend where the 12 plaintiff, partly to comply with local rules, waited over three months from the date he knew 13 of the basis for seeking an amendment to his complaint to file his motion to amend); 14 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 606–07, 610 (9th Cir. 1992) (denying leave where the plaintiff’s pleading deficiency was apparent before the deadline 15 to amend and the plaintiff’s motion to amend was four months late). Still, “[t]he district 16 court is given broad discretion in supervising the pretrial phase of litigation, and its 17 decisions regarding the preclusive effect of a pretrial order . . . will not be disturbed unless 18 they evidence a clear abuse of discretion.” Johnson, 975 F.2d at 607 (quoting Miller v. 19 Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985)). 20 21 III. Analysis 22 a. Diligence 23 Plaintiff contends he was diligent. To prove diligence, Plaintiff clarifies that 24 although he received the notice of dismissal, he could view the document only briefly. 25 (Doc. 38 at 3). Plaintiff also references the public records request he made in December 26 2019, which he asserts, should have but did not include the notice of dismissal. (Doc. 30 at 27 7). He further asserts that after receiving the notice of dismissal in Defendant County’s 28 MIDP production on June 16, 2020, he requested the document’s metadata to further 1 investigate Mr. Babbott’s involvement, because he believed the notice was signed by James 2 Jayne, not Mr. Babbott. (Doc. 38 at 3). Plaintiff also mentions that he served discovery on 3 Defendants to further investigate Mr. Babbott’s role in his termination. (Doc. 30 at 8). 4 The Court finds Plaintiff acted diligently, albeit not expeditiously. At his 5 termination, Plaintiff viewed the notice of dismissal, but only briefly. He then made a 6 public record request early in the case, on December 2019, to investigate his termination 7 more fully. The responsive document production did not include the notice of dismissal. It 8 was not until the parties’ MIDP exchange that Plaintiff finally acquired the notice of 9 dismissal. Plaintiff responded to the new information about Mr. Babbott’s involvement by 10 seeking the metadata for the document and conducting discovery. Although Plaintiff’s 11 motion was filed late, the Court finds that Plaintiff acted diligently to investigate the basis 12 for his new claim against Mr. Babbott. 13 b. Prejudice 14 Defendants allege that if the Court grants leave to amend, Mr. Babbott and the 15 Defendants will be prejudiced because they will be faced with litigating the issues arising 16 out of Plaintiff’s new 42 U.S.C. § 1983 claim. (Doc. 32 at 4).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Gary Pearlmutter, No. CV-19-08344-PCT-DJH
10 Plaintiff, ORDER
11 v.
12 County of Coconino, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff Gary Pearlmutter’s Motion to Amend 16 Complaint and Scheduling Order (Doc. 30). Plaintiff moves to add a new party.1 17 Defendants Coconino County, James Jayne, and Marie Peoples filed their Response in 18 Opposition (Doc. 32), and Plaintiff filed a Reply (Doc. 38). The matter is fully briefed. The 19 Court now issues its ruling. 20 I. Background 21 Plaintiff Gary Pearlmutter bases his claims on his employment termination. (Doc. 22 20). Defendant Coconino County employed Plaintiff from September 1993 until his 23 dismissal in December 2018. (Doc. 20 at ¶ 12). In December 2018, Plaintiff, then Director 24 of the Legal Defender’s Office, received a notice of dismissal, which he could review only 25 briefly. (Doc. 38 at 3). 26 About a year later, in December 2019, Plaintiff made a public records request to
27 1 According to LRCiv 15.1(a), a proposed amended pleading “must indicate in what respect it differs from the pleading which it amends, by bracketing or striking through the text to 28 be deleted and underlining the text to be added.” The Court notes that no such redlined version was submitted. 1 gather information relating to his termination. (Doc. 30 at 7). Plaintiff received the 2 responsive document production sporadically, but it did not include the notice of dismissal. 3 (Id.) On December 18, 2019, Plaintiff filed his Complaint against Coconino County, James 4 Jayne, and Marie Peoples. (Doc. 1). The Court issued a Scheduling Order on May 27, 2020. 5 (Doc. 15). The deadline to join parties and to amend pleadings was set to July 27, 2020. 6 (Id.) Plaintiff filed his First Amended Complaint before the deadline, on July 14, 2020. 7 (Doc. 20). 8 The parties exchanged Mandatory Initial Discovery Pilot (“MIDP”) responses on 9 June 16, 2020. (Docs. 16; 17). Importantly, Defendant Coconino County’s MIDP 10 production included the notice of dismissal. (Doc. 30 at 8). The notice of dismissal was 11 signed by Art Babbott, Chairman of the Coconino Board of Supervisors (“Board”). (Id.) 12 Until that time, Plaintiff believed that it was James Jayne who signed the notice of 13 dismissal, not Mr. Babbott. (Doc. 38 at 3). To further investigate Mr. Babbott’s 14 involvement in the termination decision, Plaintiff requested the document’s metadata. 15 (Doc. 30 at 8). Plaintiff received the metadata in early to mid-August 2020. (Id.) In 16 November 2020, Plaintiff continued his investigation into Mr. Babbott’s involvement by 17 serving discovery on all Defendants. (Id.) 18 On December 21, 2020, Plaintiff sought to join Mr. Babbott as a defendant with the 19 filing of his Motion to Amend Complaint and Scheduling Order. (Doc. 30). On the same 20 day, Plaintiff filed a separate action against Mr. Babbott to avoid potential statute of 21 limitation issues. (Doc. 30 at 8). 22 II. Legal Standard The narrow issue before the Court is whether Plaintiff acted diligently in seeking to 23 amend his Complaint to add a new party. As Plaintiff acknowledges, (Doc. 30 at 6), his 24 request to amend the Complaint and in turn modify the Scheduling Order must be analyzed 25 under Federal Rule of Civil Procedure 16(b)(4). Rule 16 states that “[a] schedule may be 26 modified only for good cause.” The primary focus in deciding whether good cause exists 27 is the moving party’s diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 28 (9th Cir. 1992)). “The district court may modify the pretrial schedule ‘if it cannot 1 reasonably be met despite the diligence of the party seeking the extension.’” Id. (quoting 2 Fed. R. Civ. P. 16 advisory committee’s notes to 1983 amendment). “[T]he focus of the 3 inquiry is upon the moving party’s reasons for seeking modification.” Johnson, 975 F.2d 4 at 609. Also, “[a]lthough the existence or degree of prejudice to the party opposing the 5 modification might supply additional reasons to deny a motion,” fundamentally, “[i]f that 6 party was not diligent, the inquiry should end.” Id. (emphasis added). 7 The due diligence standard is a stringent requirement. See, e.g., Buel v. City & 8 County of San Francisco, 166 F. App’x 901, 903 (9th Cir. 2006) (denying leave to amend 9 where the plaintiff was aware of the need to seek leave to amend at least two months before 10 the deadline for amendments and failed to seek leave at that time); Schwerdt v. Int’l Fid. 11 Ins. Co., 28 F. App’x 715, 719, 720 (9th Cir. 2002) (denying leave to amend where the 12 plaintiff, partly to comply with local rules, waited over three months from the date he knew 13 of the basis for seeking an amendment to his complaint to file his motion to amend); 14 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 606–07, 610 (9th Cir. 1992) (denying leave where the plaintiff’s pleading deficiency was apparent before the deadline 15 to amend and the plaintiff’s motion to amend was four months late). Still, “[t]he district 16 court is given broad discretion in supervising the pretrial phase of litigation, and its 17 decisions regarding the preclusive effect of a pretrial order . . . will not be disturbed unless 18 they evidence a clear abuse of discretion.” Johnson, 975 F.2d at 607 (quoting Miller v. 19 Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985)). 20 21 III. Analysis 22 a. Diligence 23 Plaintiff contends he was diligent. To prove diligence, Plaintiff clarifies that 24 although he received the notice of dismissal, he could view the document only briefly. 25 (Doc. 38 at 3). Plaintiff also references the public records request he made in December 26 2019, which he asserts, should have but did not include the notice of dismissal. (Doc. 30 at 27 7). He further asserts that after receiving the notice of dismissal in Defendant County’s 28 MIDP production on June 16, 2020, he requested the document’s metadata to further 1 investigate Mr. Babbott’s involvement, because he believed the notice was signed by James 2 Jayne, not Mr. Babbott. (Doc. 38 at 3). Plaintiff also mentions that he served discovery on 3 Defendants to further investigate Mr. Babbott’s role in his termination. (Doc. 30 at 8). 4 The Court finds Plaintiff acted diligently, albeit not expeditiously. At his 5 termination, Plaintiff viewed the notice of dismissal, but only briefly. He then made a 6 public record request early in the case, on December 2019, to investigate his termination 7 more fully. The responsive document production did not include the notice of dismissal. It 8 was not until the parties’ MIDP exchange that Plaintiff finally acquired the notice of 9 dismissal. Plaintiff responded to the new information about Mr. Babbott’s involvement by 10 seeking the metadata for the document and conducting discovery. Although Plaintiff’s 11 motion was filed late, the Court finds that Plaintiff acted diligently to investigate the basis 12 for his new claim against Mr. Babbott. 13 b. Prejudice 14 Defendants allege that if the Court grants leave to amend, Mr. Babbott and the 15 Defendants will be prejudiced because they will be faced with litigating the issues arising 16 out of Plaintiff’s new 42 U.S.C. § 1983 claim. (Doc. 32 at 4). Defendants also believe Mr. 17 Babbott will be prejudiced since he will have to continue to “engage in County business” 18 despite his expired term. (Id.) 19 The Court acknowledges that granting Plaintiff leave to amend may prejudice the 20 parties. However, the prejudice is minimal because Plaintiff’s § 1983 claims arose out of 21 the same set of facts. Defendants insist that Plaintiff was aware of Mr. Babbott’s role in 22 the termination decision before he filed his lawsuit. (Doc. 32 at 3). Yet, they too, were also 23 aware of Mr. Babbott’s involvement and his position as Chairman of the Board. They stress 24 that Mr. Babbott’s involvement was disclosed to Plaintiff prior to the amendment deadline 25 in the MIDP responses. (Id.) But, as Plaintiff notes, discovery in this case will likely already 26 include the necessary information regarding Mr. Babbott’s involvement and may have 27 already been produced. 28 Finally, the Court notes that not only will the prejudice to Defendants be minimal, but “the filing of a second, partially parallel action [against Mr. Babbott] [is] not only 2|| wasteful to the parties, but [will] unnecessarily exhaust judicial resources, [and] cause || duplicative filings and efforts.” Russell v. Swick Mining Servs. USA Inc., No. CV-16- 4|| 02887-PHX-JJT, 2017 WL 1365081, at *3 (D. Ariz. Apr. 14, 2017). 5 The Court finds that Plaintiff has demonstrated due diligence and has therefore 6 || established good cause. The Court further finds that any prejudice resulting from adding Mr. Babbott as a new party will be minimal. 8 Accordingly, 9 IT IS HEREBY ORDERED that Plaintiff's Motion to Amend Complaint and || Scheduling Order (Doc. 30) is granted. 11 IT IS FURTHER ORDERED that Plaintiff shall have fourteen days from the date of this Order to file the amended Complaint pursuant to LRCiv 15.1(a). 13 Dated this 10th day of June, 2021. 14 15 oC. . je _ \Le 16 norable' Diang/4. Hunfetewa 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28
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