Summary
holding "[a]lthough [p]laintiffs did not specifically request that the court modify its scheduling order and merely moved to amend their Complaint, the motion is treated as a de facto motion to amend . . . the Scheduling Order"
Summary of this case from Liberty Mut. Ins. Co. v. California Auto. Assigned Risk PlanOpinion
2:07-cv-2200-GEB-GGH.
October 6, 2008
ORDER
This matter was determined to be suitable for decision without oral argument. L.R. 78-230(h).
On August 27, 2008, Plaintiffs filed a motion for leave to amend their complaint; specifically Plaintiffs seek to add a state claim for disability discrimination under California's Fair Employment and Housing Act. Defendant counters Plaintiffs have failed to demonstrate the requisite good cause needed to amend the Status (Pretrial Scheduling) Order ("Scheduling Order"). (D. Opp'n at 3:7-28.)
Although Plaintiffs did not specifically request that the court modify its scheduling order and merely moved to amend their Complaint, the motion is treated as a de facto motion to amend the "No further amendments" language in the Scheduling Order issued on April 23, 2008. Rule 16(b)'s "good cause" standard governs the decision whether to amend a Scheduling Order issued under Rule 16 of the Federal Rules of Civil Procedure. This "standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule if it cannot reasonably be met despite the diligence of the party seeking the [amendment]." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (internal citations omitted).
Plaintiffs assert they have been diligent, since their present counsel "has only been employed for seven weeks and just learned of [Plaintiff's former counsel's] oversight in not previously pleading [the state] disability discrimination claim." (Pl. Mot. at 4:22-25.) However, Plaintiffs concede that "the facts supporting the [state] disability discrimination claim [they seek to add] are already part of the complaint," (Pl. Mot. at 4:19-20), and fail to provide an explanation as to why the alleged oversight of Plaintiffs' earlier counsel is sufficient to satisfy Plaintiffs' burden under the good cause standard. See generally, Tapia v. Woods, 2007 U.S. Dist. LEXIS 80025 *2-6 (E.D. Cal. 2007) (holding reassignment of an action to a new attorney in the same office does not constitute good cause). Generally, [t]he Federal Rules of Civil Procedure, Local Rules, and Court's scheduling orders are not to be set aside or disregarded because an attorney new to the case has different ideas . . ." Id. at *4.
Plaintiffs have not provided reasons to justify permitting their new counsel leave to amend the Scheduling Order. As stated in Johnson, "carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Johnson, 975 F.2d at 609. Therefore, Plaintiffs' motion for leave to amend is denied.