The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
DRAFT RETURNAS TOOF JUNE 1, 2009 KEVIN HEARING DATE: 6/15/09
MEMORANDUM DECISION RE DEFENDANTS DARRIN SIMMONS AND MOTION FOR LEAVE TO AMEND (Doc. 108)
This matter is before the court on Plaintiff's motion to modify the pretrial scheduling order, pursuant to Federal Rule of Civil Procedure 16(b),*fn1 and to amend his complaint pursuant to Rule 15. Defendants Darrin Simmons ("Simmons") and Clean Air Products, Inc. ("Clean Air") oppose the motion. The following background facts are taken from the pleadings and other documents on file in this case.
This action was filed on September 19, 2005, by Plaintiff Thomas N. Smith, a resident of New Zealand, against Defendants Simmons, an individual residing in Tulare County, and Clean Air, a California corporation with its principal place of business in Tulare County.
Plaintiff is the sole owner of Land O'Goshen, Inc., which allegedly entered into a series of written contracts with Defendants to sell the assets of "Help Smog Parts," a business operating out of Visalia, California. Specifically, Plaintiff alleges that under the terms of a November 23, 1998 Agreement (the "1998 Agreement"), Land O'Goshen sold inventory from an auction held by Help Smog Parts, including the 800 telephone, the customer database, the operating systems and various other business property and services. Plaintiff alleges that Defendants performed under the contract for five years, only to cease making payments in 2003.
Plaintiff alleges that the parties entered into a second written agreement in 2001. The 2001 agreement allegedly outlined the obligations of the 1998 agreement and provided certain benefits to Plaintiff for preparing a business plan and soliciting buyers on behalf of Defendants. Specifically, Plaintiff would receive 50 cents for every $1.00 of referral business in excess of $500,000. Plaintiff alleges that he referred substantial business to Defendants, but was never compensated.
As a result of the Defendants' alleged conduct, Plaintiff seeks $278,929.00 plus interest under the 1998 agreement and an unknown sum under the 2001 agreement. Plaintiff claims that Defendants Simmons and Clean Air are parties to each contract, i.e., that Simmons is personally liable and damages are not limited to Clean Air's corporate form.
III. PROCEDURAL BACKGROUND.
The litigation in this case, albeit extended, has been thorough. In the original complaint, Plaintiff, appearing pro per, brought several causes of action related to Land O'Goshen's sale of certain assets to Defendants pursuant to several written contracts.*fn2 (Doc. 1.) Defendant Simmons filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. (Doc. 8, Motion to Dismiss I.)
On February 9, 2006, Plaintiff filed his first amended complaint, again seeking damages for breach of the 1998 and 2001 written contracts. (Doc. 11, First Amended Complaint ("FAC").) On April 3, 2006, Defendant Simmons again filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. (Doc. 15, Motion to Dismiss II.) On June 19, 2006, Plaintiff was granted leave to file an amended complaint. (Doc. 18.)
On July 5, 2006, Plaintiff, now represented by counsel, filed a second amended complaint alleging breach of contract and fraud.*fn3 (Doc. 19, Second Amended Complaint ("SAC").) Plaintiff's claims were based on the 1998 and 2001 written contracts. (Id.) On July 25, 2006, Defendants moved to dismiss Plaintiff's third cause of action for fraud. (Doc. 20.) On September 15, 2006, Defendants' motion was granted with prejudice. (Doc. 24.) On October 4, 2006, Defendants filed an answer to Plaintiff's second amended complaint. (Doc. 26.)
On January 4, 2007, David Gilmore, counsel for Plaintiff, and Ron Statler, counsel for Defendant Simmons, attended a scheduling conference. A Scheduling Conference Order was issued on January 10, 2007 and stated, in pertinent part, that "[t]he parties do not anticipate filing any amendments to the pleadings at this time." (Doc. 31.) The January 10, 2007 Scheduling Conference Order provided a discovery cutoff of October 5, 2007, a non-dispositive motion deadline of October 19, 2007, and a dispositive motion deadline of November 5, 2007.
On July 6, 2007, Defendant Darrin Simmons filed a motion for judgment on the pleadings. (Doc. 42.) Defendant's motion was granted on September 25, 2007, although ...