1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CINDY WAGNER, No. 2:20-cv-00403-JAM-DMC 11 Plaintiff, 12 v. ORDER DENYING PLAINTIFF’S MOTION TO AMEND 13 SHASTA COUNTY; SHASTA COUNTY SHERIFF’S DEPARTMENT; and DOES 14 1 through 20, inclusive, 15 Defendants. 16 On January 23, 2020, Cindy Wagner (“Plaintiff”) filed suit 17 against Shasta County, the Shasta County Sheriff’s Department, 18 and Does 1-20 in Shasta County Superior Court for civil rights 19 violations arising from injuries she sustained when Shasta County 20 Sheriff’s Deputies used force against her in the Shasta County 21 Jail. See Compl. ¶¶ 18, 19, ECF No. 1. Shasta County 22 (“Defendant”) removed the matter to federal court on February 21, 23 2020. See Notice of Removal, ECF No. 1. The Court granted in 24 part and denied in part Defendant’s Motion for Judgment on the 25 Pleadings (“JOP”) on November 3, 2020. See Order on Mot. for 26 JOP, ECF No 25. Plaintiff now moves for leave to file a First 27 Amended Complaint (“FAC”) to add Deputy Robert VanGerwen as a 28 1 named defendant. See Mot. to Am. (“Mot.”), ECF No. 28. 2 Defendant opposes the motion. See Opp’n, ECF No. 32. Plaintiff 3 filed a reply. See Reply, ECF No. 33. 4 For the reasons set forth below, the Court DENIES 5 Plaintiff’s Motion to Amend.1 6 7 I. BACKGROUND2 8 On June 8, 2020, the Court issued an initial pretrial 9 scheduling order pursuant to Federal Rule of Civil Procedure 10 16(b) which established, inter alia, a cut-off date for joining 11 additional parties and amending the complaint. See Sched. Order, 12 ECF No. 14. The scheduling order states: “No further joinder of 13 parties or amendments to pleadings is permitted except with leave 14 of court, good cause having been shown.” Id. at 1. On April 28, 15 2021, the parties stipulated to continuing some of the Court’s 16 pretrial scheduling order deadlines but left the cut-off date for 17 joining additional parties and making amendments unchanged. See 18 Order Continuing Sched. Order Deadlines ¶ 2, ECF No. 31. 19 On June 26, 2020, Defendant served Plaintiff with its 20 initial disclosures. Carpenter Decl. ¶ 3, ECF No. 32. Within 21 those initial disclosures, Defendant named VanGerwen as a witness 22 to the incident who was “likely to have discoverable 23 information.” See Initial Disc. No. 7, ECF No. 32. VanGerwen 24 was also identified as having been interviewed during the
25 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 26 scheduled for June 8, 2021. 27 2 The facts of the case are set forth in detail in the Court’s previous Order. See Order on Mot. for JOP at 2–3. They will not 28 be reduced into writing again here. 1 internal affairs investigation into the incident as part of the 2 list of relevant documents and materials in the initial 3 disclosures. See Initial Disc. Tabs 6, 32. 4 On December 4, 2020, Plaintiff served Defendant with a first 5 set of interrogatories and requests for production of documents. 6 Carpenter Decl. ¶ 4. On January 11, 2021, Defendant responded to 7 Plaintiff’s initial interrogatories and requests for production. 8 Carpenter Decl. ¶ 5. Defendant produced the recording and 9 transcript of VanGerwen’s internal affairs interview conducted on 10 September 19, 2019. See Def.’s Resp. to Req. for Produc., Tabs 11 6, 22, ECF No. 33-1. Defendant also produced a notice to 12 VanGerwen regarding the internal affairs interview and 13 VanGerwen’s training activity log. Id. at Tabs 29, 50. 14 Plaintiff, for her part, argues VanGerwen’s name was not 15 disclosed to her until “February 12, 2021, in response to written 16 discovery requests.” Mot. at 2. And that Plaintiff’s counsel 17 thereafter repeatedly requested that Defendant stipulate to 18 including VanGerwen’s name in a FAC. Id. However, it was not 19 until April 6, 2021, that Defendant’s counsel informed 20 Plaintiff’s counsel that Defendant would not stipulate to adding 21 VanGerwen as a named defendant in a FAC. Id. The instant motion 22 ensued. 23 24 II. OPINION 25 A. Legal Standard 26 After the Court has filed a pretrial scheduling order, a 27 party’s motion to amend must satisfy Rule 16(b)’s “good cause” 28 requirement. Johnson v. Mammoth Recreations, Inc., 975 F.2d 1 604, 607-08 (9th Cir. 1992); Coleman v. Quaker Oats Co., 232 2 F.3d 1271, 1294–95 (9th Cir. 2000) (“But where the Court has 3 entered a scheduling order, a request to amend the pleadings is 4 no longer governed by Rule 15; rather, Rule 16 controls.”). 5 This requirement primarily looks to “the diligence of the party 6 seeking the amendment.” Johnson, 975 F.2d at 609. “[T]he 7 existence or degree of prejudice to the party opposing the 8 modification might supply additional reasons to deny a motion.” 9 Id. But, unlike Federal Rule of Civil Procedure 15’s analysis, 10 “the focus of the inquiry is upon the moving party’s reasons for 11 seeking modification.” Id. If the “[moving] party was not 12 diligent, the inquiry should end.” Id. 13 Both sides overlook the Rule 16(b) question, and only 14 analyze the Rule 15(a) factors. However, given the Rule 15(a) 15 factors require consideration of undue delay and prejudice, the 16 parties’ arguments lend themselves sufficiently well to a Rule 17 16(b) analysis. 18 B. Rule 16(b) 19 The “good cause” requirement “typically will not be met 20 where the party seeking [modification] has been aware of the 21 facts and theories supporting amendment since the inception of 22 the action.” Id. at 737. Indeed, “carelessness is not 23 compatible with a finding of diligence and offers no reason for a 24 grant of relief.” Johnson, 975 F.2d at 610. Plaintiff argues 25 she should be granted leave to amend the complaint to add 26 VanGerwen as a named defendant because “his name was not 27 disclosed as part of Defendant’s initial Rule 26 disclosures,” 28 instead, it was disclosed for the first time on February 12, 1 2021. Mot. at 2. Defendant counters that Plaintiff has been 2 aware of VanGerwen’s involvement in the incident for some time 3 now, and thus, has not been diligent in seeking amendment. Opp’n 4 at 4. As a result, Plaintiff has failed to establish good cause. 5 The Court agrees. 6 Defendant first disclosed VanGerwen’s name to Plaintiff as 7 part of its initial disclosures on June 26, 2020. See Initial 8 Disc. No. 7. Therein, Defendant not only identified VanGerwen, 9 but also described him as a witness to the incident who was 10 likely to have discoverable information. Id. Plaintiff 11 incorrectly asserts that she received VanGerwen’s name for the 12 first time on February 12, 2021. At this point, Plaintiff should 13 have considered VanGerwen a high priority witness. Especially 14 considering the initial disclosures also noted that VanGerwen was 15 interviewed during the internal affairs investigation into the 16 incident. See Initial Disc. Tabs 6, 32. 17 Then, on January 11, 2021, Defendant responded to 18 Plaintiff’s first set of interrogatories and requests for 19 production of documents. See Def.’s Resp. to Req. for Produc. 20 Included in Defendant’s response was the recording and transcript 21 of VanGerwen’s internal affairs interview. Id. at Tabs 6, 22. 22 By Plaintiff’s own admission, VanGerwen’s internal affairs 23 interview revealed his role in the incident. See Reply at 2 24 (Once the recording and transcript of the interview was produced, 25 “Plaintiff would have known that VanGerwen threw her into the 26 wall.”).
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CINDY WAGNER, No. 2:20-cv-00403-JAM-DMC 11 Plaintiff, 12 v. ORDER DENYING PLAINTIFF’S MOTION TO AMEND 13 SHASTA COUNTY; SHASTA COUNTY SHERIFF’S DEPARTMENT; and DOES 14 1 through 20, inclusive, 15 Defendants. 16 On January 23, 2020, Cindy Wagner (“Plaintiff”) filed suit 17 against Shasta County, the Shasta County Sheriff’s Department, 18 and Does 1-20 in Shasta County Superior Court for civil rights 19 violations arising from injuries she sustained when Shasta County 20 Sheriff’s Deputies used force against her in the Shasta County 21 Jail. See Compl. ¶¶ 18, 19, ECF No. 1. Shasta County 22 (“Defendant”) removed the matter to federal court on February 21, 23 2020. See Notice of Removal, ECF No. 1. The Court granted in 24 part and denied in part Defendant’s Motion for Judgment on the 25 Pleadings (“JOP”) on November 3, 2020. See Order on Mot. for 26 JOP, ECF No 25. Plaintiff now moves for leave to file a First 27 Amended Complaint (“FAC”) to add Deputy Robert VanGerwen as a 28 1 named defendant. See Mot. to Am. (“Mot.”), ECF No. 28. 2 Defendant opposes the motion. See Opp’n, ECF No. 32. Plaintiff 3 filed a reply. See Reply, ECF No. 33. 4 For the reasons set forth below, the Court DENIES 5 Plaintiff’s Motion to Amend.1 6 7 I. BACKGROUND2 8 On June 8, 2020, the Court issued an initial pretrial 9 scheduling order pursuant to Federal Rule of Civil Procedure 10 16(b) which established, inter alia, a cut-off date for joining 11 additional parties and amending the complaint. See Sched. Order, 12 ECF No. 14. The scheduling order states: “No further joinder of 13 parties or amendments to pleadings is permitted except with leave 14 of court, good cause having been shown.” Id. at 1. On April 28, 15 2021, the parties stipulated to continuing some of the Court’s 16 pretrial scheduling order deadlines but left the cut-off date for 17 joining additional parties and making amendments unchanged. See 18 Order Continuing Sched. Order Deadlines ¶ 2, ECF No. 31. 19 On June 26, 2020, Defendant served Plaintiff with its 20 initial disclosures. Carpenter Decl. ¶ 3, ECF No. 32. Within 21 those initial disclosures, Defendant named VanGerwen as a witness 22 to the incident who was “likely to have discoverable 23 information.” See Initial Disc. No. 7, ECF No. 32. VanGerwen 24 was also identified as having been interviewed during the
25 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 26 scheduled for June 8, 2021. 27 2 The facts of the case are set forth in detail in the Court’s previous Order. See Order on Mot. for JOP at 2–3. They will not 28 be reduced into writing again here. 1 internal affairs investigation into the incident as part of the 2 list of relevant documents and materials in the initial 3 disclosures. See Initial Disc. Tabs 6, 32. 4 On December 4, 2020, Plaintiff served Defendant with a first 5 set of interrogatories and requests for production of documents. 6 Carpenter Decl. ¶ 4. On January 11, 2021, Defendant responded to 7 Plaintiff’s initial interrogatories and requests for production. 8 Carpenter Decl. ¶ 5. Defendant produced the recording and 9 transcript of VanGerwen’s internal affairs interview conducted on 10 September 19, 2019. See Def.’s Resp. to Req. for Produc., Tabs 11 6, 22, ECF No. 33-1. Defendant also produced a notice to 12 VanGerwen regarding the internal affairs interview and 13 VanGerwen’s training activity log. Id. at Tabs 29, 50. 14 Plaintiff, for her part, argues VanGerwen’s name was not 15 disclosed to her until “February 12, 2021, in response to written 16 discovery requests.” Mot. at 2. And that Plaintiff’s counsel 17 thereafter repeatedly requested that Defendant stipulate to 18 including VanGerwen’s name in a FAC. Id. However, it was not 19 until April 6, 2021, that Defendant’s counsel informed 20 Plaintiff’s counsel that Defendant would not stipulate to adding 21 VanGerwen as a named defendant in a FAC. Id. The instant motion 22 ensued. 23 24 II. OPINION 25 A. Legal Standard 26 After the Court has filed a pretrial scheduling order, a 27 party’s motion to amend must satisfy Rule 16(b)’s “good cause” 28 requirement. Johnson v. Mammoth Recreations, Inc., 975 F.2d 1 604, 607-08 (9th Cir. 1992); Coleman v. Quaker Oats Co., 232 2 F.3d 1271, 1294–95 (9th Cir. 2000) (“But where the Court has 3 entered a scheduling order, a request to amend the pleadings is 4 no longer governed by Rule 15; rather, Rule 16 controls.”). 5 This requirement primarily looks to “the diligence of the party 6 seeking the amendment.” Johnson, 975 F.2d at 609. “[T]he 7 existence or degree of prejudice to the party opposing the 8 modification might supply additional reasons to deny a motion.” 9 Id. But, unlike Federal Rule of Civil Procedure 15’s analysis, 10 “the focus of the inquiry is upon the moving party’s reasons for 11 seeking modification.” Id. If the “[moving] party was not 12 diligent, the inquiry should end.” Id. 13 Both sides overlook the Rule 16(b) question, and only 14 analyze the Rule 15(a) factors. However, given the Rule 15(a) 15 factors require consideration of undue delay and prejudice, the 16 parties’ arguments lend themselves sufficiently well to a Rule 17 16(b) analysis. 18 B. Rule 16(b) 19 The “good cause” requirement “typically will not be met 20 where the party seeking [modification] has been aware of the 21 facts and theories supporting amendment since the inception of 22 the action.” Id. at 737. Indeed, “carelessness is not 23 compatible with a finding of diligence and offers no reason for a 24 grant of relief.” Johnson, 975 F.2d at 610. Plaintiff argues 25 she should be granted leave to amend the complaint to add 26 VanGerwen as a named defendant because “his name was not 27 disclosed as part of Defendant’s initial Rule 26 disclosures,” 28 instead, it was disclosed for the first time on February 12, 1 2021. Mot. at 2. Defendant counters that Plaintiff has been 2 aware of VanGerwen’s involvement in the incident for some time 3 now, and thus, has not been diligent in seeking amendment. Opp’n 4 at 4. As a result, Plaintiff has failed to establish good cause. 5 The Court agrees. 6 Defendant first disclosed VanGerwen’s name to Plaintiff as 7 part of its initial disclosures on June 26, 2020. See Initial 8 Disc. No. 7. Therein, Defendant not only identified VanGerwen, 9 but also described him as a witness to the incident who was 10 likely to have discoverable information. Id. Plaintiff 11 incorrectly asserts that she received VanGerwen’s name for the 12 first time on February 12, 2021. At this point, Plaintiff should 13 have considered VanGerwen a high priority witness. Especially 14 considering the initial disclosures also noted that VanGerwen was 15 interviewed during the internal affairs investigation into the 16 incident. See Initial Disc. Tabs 6, 32. 17 Then, on January 11, 2021, Defendant responded to 18 Plaintiff’s first set of interrogatories and requests for 19 production of documents. See Def.’s Resp. to Req. for Produc. 20 Included in Defendant’s response was the recording and transcript 21 of VanGerwen’s internal affairs interview. Id. at Tabs 6, 22. 22 By Plaintiff’s own admission, VanGerwen’s internal affairs 23 interview revealed his role in the incident. See Reply at 2 24 (Once the recording and transcript of the interview was produced, 25 “Plaintiff would have known that VanGerwen threw her into the 26 wall.”). Thus, as of January 11, 2021, Plaintiff understood 27 VanGerwen to be one of the deputies who allegedly used force 28 against her while she was detained in the Shasta County Jail. 1 Plaintiff argues that Defendant was obligated to detail 2 VanGerwen’s involvement sooner, pursuant to Federal Rule of Civil 3 Procedure 26, which requires parties identify each individual 4 likely to have discoverable information, along with the subjects 5 of that information. See Reply at 1–3. Defendant identified 6 VanGerwen in its initial disclosures. Moreover, Defendant 7 identified him as a witness to the incident. In other words, 8 Defendant disclosed that VanGerwen was in possession of 9 discoverable information: Notably, he could provide a first-hand 10 account of what happened to Plaintiff in the jail. Thus, 11 Defendant disclosed to Plaintiff what Rule 26 requires. 12 Plaintiff knew of VanGerwen as early as June 26, 2020, 13 fourth months after the case was removed to federal court and 14 just after the Court issued its scheduling order. Nearly one 15 year has passed since VanGerwen was first identified. Even 16 assuming VanGerwen’s identification in Defendant’s initial 17 disclosures was insufficient to put Plaintiff on notice of the 18 degree of his involvement and potential liability, Plaintiff 19 waited until December 4, 2020, to serve Defendant with a first 20 set of interrogatories and requests for production. Plaintiff’s 21 counsel’s explanation for this five-month delay is insufficient. 22 See Reply at 4 (“There does appear to have been about a five 23 month ‘delay’ in getting formal discovery sent out to Defendant 24 which is attributable to the associate who was handling the case 25 being occupied with other matters on this and other cases and 26 preparing to leave Plaintiff’s lawyer’s firm.”). That Plaintiff 27 did not receive the complete details of VanGerwen’s involvement 28 until January 11, 2021, is entirely attributable to her 1 attorneys’ own delay. 2 Moreover, once Plaintiff received the recording and 3 transcript of VanGerwen’s internal affairs interview, another 4 three months passed before the instant motion was filed. 5 Plaintiff’s attorney attributes this to Defendant’s counsel’s 6 unresponsiveness to Plaintiff’s counsel’s requests to stipulate 7 to amendment. See Mot. at 2. This explanation is similarly 8 unpersuasive. Defendant’s lack of response does not grant 9 Plaintiff leave to sit on her hands and wait. Diligence requires 10 Plaintiff to act when Defendant stays silent or refuses to 11 cooperate. See Johnson, 975 F.2d at 609. 12 In addition, were the Court to grant Plaintiff leave to 13 amend at this stage, Defendant would suffer a degree of 14 prejudice. Under the Court’s amended deadlines, the discovery 15 deadline is just over four months away and the dispositive motion 16 deadline is approximately six months away. See Mins., ECF No. 17 31. Considering the rate at which discovery has proceeded thus 18 far, the Court is not persuaded both sides will be able to 19 complete discovery and motions practice relating to a new named 20 defendant and any new theories of liability asserted against him. 21 See GSI Tech., Inc. v. United Memories, Inc., WL 4463742, at *3 22 (N.D. Cal. 2015) (“Prejudice [] exists where there will be no 23 period to file dispositive motions on amended pleadings.”); see 24 also Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Ci. 1990) 25 (Prejudice exists where “[a]dditional claims advance different 26 legal theories and require proof of different facts.”). 27 In sum, Plaintiff’s lack of diligence prevents her from 28 making the requisite showing of “good cause” here. As does the 1 | prejudice such a delayed amendment would impose on Defendant. 2 | Accordingly, the Court finds that Plaintiff has not satisfied Rule 16(b)’s requirement. Because Plaintiff failed to show good 4 cause to amend under Rule 16(b), the Court need not address 5 whether the amendment to the complaint is proper under Rule 15. 6 7 Til. ORDER 8 For the reasons set forth above, the Court DENIES 9 | Plaintiff’s Motion to Amend. 10 IT IS SO ORDERED. 11 Dated: June 21, 2021 12 kA 13 teiren staves odermacr 7008 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28