ORDER AND FINDINGS AND RECOMMENDATIONS
This matter came before the court on December 19, 2008 for hearing of defendants' motion for summary judgment (Doc. No. 54) and plaintiff's counter-motion for summary judgment or, in the alternative, for further discovery (Doc. No. 69). Plaintiff James B. Phifer appeared in propria persona, and Wendy M. Motooka, Esq. appeared for defendants. Oral argument was heard, and the motions for summary judgment were taken under submission.
On April 2, 2009, plaintiff filed a motion to amend his complaint (Doc. No. 76). The United States of America was granted leave to appear as amicus curiae in opposition to plaintiff's motion to amend. At the hearing of the motion on May 15, 2009, plaintiff appeared in propria persona, and Wendy Motooka appeared for defendants. Oral argument was heard, and that motion was then taken under submission as well.
Also pending before the court are plaintiff's request for a deposition transcript at court expense (Doc. No. 68), plaintiff's "Notice of Claim of Unconstitutionality of Federal Law" (Doc. No. 88), and the ex parte application of the United States for an extension of the deadline to move to intervene with regard to plaintiff's claim of unconstitutionality (Doc. No. 92). By this order and findings and recommendations, the undersigned addresses all pending matters.
PLAINTIFF'S MOTION TO AMEND
I. Legal Standards Applicable to a Motion to Amend
Plaintiff seeks leave to amend pursuant to Federal Rule of Civil Procedure 15. As plaintiff concedes, once a party has been served with a responsive pleading, the party may amend its pleading "only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a). Rule 15 provides that "[t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Although the decision whether to grant or deny a motion to amend is within the district court's discretion,*fn1 the provision that leave to amend should be freely given when justice so requires has been described by the Supreme Court as a mandate to be heeded. Foman v. Davis, 371 U.S. 178, 182 (1962). "In exercising its discretion with regard to the amendment of pleadings, 'a court must be guided by the underlying purpose of Rule 15 -- to facilitate decision on the merits rather than on the pleadings or technicalities.'" Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)).
The liberal policy in favor of amendments is, however, subject to limitations. In determining whether to grant a motion to amend, the court considers such factors as undue delay, bad faith or dilatory motive, prejudice to the opposing party, and futility. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1034 (9th Cir. 2008); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); California Architectural Bldg. Prods. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1472 (9th Cir. 1987). "Prejudice to the opposing party is the most important factor." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 (1971)). Prejudice may be found if the proposed amendments would force the defendants to participate in additional discovery. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). Extending or reopening discovery can create both prejudice and undue delay. Solomon v. N. Am. Life & Cas. Ins. Co., 151 F.3d 1132, 1139 (9th Cir. 1998). Where the moving party seeks to amend its complaint to add a party, avoiding prejudice to the party to be added must also be a major objective. DCD Programs, Ltd., 833 F.2d at 187. Finally, leave to amend may properly be denied where the proposed amendment would be futile or where the amended complaint would be subject to dismissal. Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991).
Defendants argue correctly that Federal Rule of Civil Procedure 16 must be applied when a party seeks leave to amend after the court has issued a scheduling order and the deadlines have passed for joining other parties, amending pleadings, and/or filing motions. Once the court has filed a pretrial scheduling order pursuant to Rule 16, with a timetable for amending pleadings, a motion for leave to amend is governed first by the standards of Rule 16(b) and only secondarily by Rule 15(a) if the Rule16(b) standards are met. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).
Under Rule 16, the court is required to issue a scheduling order as soon as practicable, and the order "must limit the time to join other parties, amend the pleadings, complete discovery, and file motions." Fed. R. Civ. P. 16(b)(3)(A).*fn2 Once a scheduling order has been filed pursuant to Rule 16, the "schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "Rule 16(b)'s 'good cause' standard primarily considers the diligence of the party seeking the amendment." Johnson, 975 F.2d at 609. If the moving party fails to demonstrate diligence, "the inquiry should end." Id. (affirming district court's denial of motion to amend made four months after cut-off date for amendment had expired and diligence was not shown).
The undersigned finds that plaintiff has not made a showing of diligence and has not met his burden of demonstrating good cause to modify the pretrial scheduling order in this case with respect to the cut-off dates for amendment of pleadings, joinder of parties, discovery, and law and motion practice. On January 22, 2008, the court's Status (Pretrial Scheduling) Order was filed pursuant to Federal Rule of Civil Procedure 16.*fn3 Under the heading "JOINDER OF PARTIES/AMENDMENTS," the order provides that "[n]o further joinder of parties or amendments to pleadings is permitted except with leave of court, good cause having been shown." (Status (Pretrial Scheduling) Order (Doc. No. 27) at 2.) Under the heading "MOTION HEARING SCHEDULES," the order provides that all law and motion, except as to discovery, "shall be conducted so as to be completed by December 19, 2008," with "completed" meaning that non-discovery motions must be heard on or before December 19, 2008. (Id. (emphasis in original).) Under the heading "DISCOVERY," the order provides that all discovery shall be conducted so as to be completed by October 31, 2008, with "completed" meaning that all depositions have been taken and any disputes shall have been resolved by appropriate order if necessary and, where discovery has been ordered, the order has been complied with. (Id. at 4.)
Plaintiff's motion to amend his complaint was filed more than fourteen months after the court ordered that there would be no further joinder of parties or amendment to pleadings, absent a showing of good cause. The motion to amend was filed more than five months after discovery closed and more than three months after law and motion closed in this action. The parties' motions for summary judgment had been briefed and argued in a timely manner and were already submitted for decision. Plaintiff noticed his motion to amend for hearing on May 15, 2009, just 45 days before the scheduled Final Pretrial Conference. Plaintiff's belated motion to amend did not allow sufficient time to resolve that motion and the already pending summary judgment motions prior to Final Pretrial Conference. Accordingly, the dates set for Final Pretrial Conference and jury trial were vacated.
Plaintiff's motion to amend does not mention good cause or make a showing of diligence. Plaintiff merely states that he is amending his complaint to add a defendant and additional allegations and argues that his motion should be granted in the interest of justice. Plaintiff asserts that he is a member of a protected class of persons in that he is black and disabled and the Department of Housing and Urban Development (HUD) has a statutory duty to ensure that programs within its control or receiving federal financial assistance are administered in a manner that prevents discrimination based on race or disability.
Plaintiff did not file a reply to defendants' opposition to his motion or to the brief filed by the United States as amicus curiae. The undersigned has examined plaintiff's proposed amended complaint in order to determine whether good cause is discernible in the pleading. It is not. The proposed amended complaint contains extensive allegations and claims that differ substantially from the claims set forth in plaintiff's original pleading in this case. In the original, and still the operative, pleading, the sole defendants are Sacramento Housing and Redevelopment Agency (SHRA) and that agency's director, Anne Moore. Plaintiff filed a separate action against the United States Department of Housing and Urban Development (HUD) regarding the agency's investigation of his EEO complaint against SHRA. Plaintiff filed his case against HUD in the United States District Court for the District of Columbia. That case was transferred to the Eastern District of California and was related to his case against SHRA and its director. The court takes judicial notice of plaintiff's related case, Phifer v. United States Department of Housing and Urban Development (HUD), case No. CIV S-08-0299 LKK DAD PS.*fn4
In plaintiff's original complaint against defendants SHRA and Moore, he asserts two claims arising under the Fair Housing Act, the Americans With Disabilities Act, the Rehabilitation Act, and Title VI of the Civil Rights Act. In the first claim, he alleges that in November 2005, while renting an apartment through the SHRA conventional housing program, he requested a unit transfer as a reasonable accommodation but his request was denied based on his race and disability. In the second claim, plaintiff alleges that the defendants discriminated against him based on race and disability when they changed his enrollment date on a waiting list for a federal voucher program so that he could not obtain housing through that program. Plaintiff seeks five million dollars in actual and punitive damages, as well as an injunction preventing defendants from changing enrollment dates in the future.
Plaintiff's proposed new defendant is Irenis Green, an Equal Opportunity Specialist employed by HUD in its San Francisco Office. In a lengthy and confusing statement of jurisdiction, plaintiff invokes the same federal statutes identified in his operative pleading and asserts claims arising under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1964-1965, and conspiracy claims under 42 U.S.C. § 1985(2) and (3). Plaintiff asserts that all of the statutes cited "are constitutionally deficient because HUD is not included in the nondiscriminatory clause of the acts in violation of the First Amendment clause that Congress shall make no law that abridges the right to bring grievances for redress before the courts." He claims that the federal statutes cited are in conflict with the First, Fifth, Eleventh, and Fourteenth Amendments. In an even longer and more confusing statement of allegations, plaintiff reiterates his claim that he was denied reasonable accommodation. He also offers vague and conclusory allegations about conspiracy, racism, and hate crimes, and realleges his claim that defendants changed his enrollment date for the voucher program to prevent him from receiving housing services. Plaintiff alleges at length that SHRA conspired with other agencies to harm him and his relatives in numerous ways, ranging from torturing and poisoning plaintiff to murdering one of his nephews. The allegations against proposed defendant Green are that she "fabricated" HUD's investigative report, conspired with unidentified SHRA employees, lied about her interview with plaintiff, and failed to "turn in" evidence she had gathered.*fn5 Plaintiff seeks an order requiring that all of the statutes cited be amended and that he be awarded compensatory, statutory, and punitive damages of five million dollars each from SHRA and Ms. Green.
Plaintiff does not explain his delay in moving to amend his complaint in this action. Plaintiff has not alleged newly discovered facts, but his proposed amendments would substantially alter the basis for this action and would necessitate extensive additional discovery. Granting plaintiff leave to amend would unduly delay a ruling on the cross-motions for summary judgment that were pending when the motion to amend was filed. The present defendants and the proposed new defendant would be severely prejudiced. Moreover, it appears that plaintiff's motion to amend has been brought for purposes other than facilitating a decision on the merits of his claims against SHRA and its director. On March 19, 2009, two weeks prior to the filing of plaintiff's untimely motion to amend, plaintiff's case against HUD was dismissed for lack of subject matter jurisdiction. The proposed amendments to this case suggest that plaintiff seeks to pursue his dismissed claims against HUD in this case.
The undersigned finds that plaintiff has failed to meet Rule 16(b)'s good cause standard. The motion to amend will be denied on that ground. Even if plaintiff had met that standard, the undersigned would deny the motion because of undue delay and prejudice to current and proposed defendants. Although it is unnecessary to discuss additional reasons for denying plaintiff's motion, the undersigned finds it probable that filing the proposed amended complaint would be futile, as some or all of plaintiff's proposed new RICO, conspiracy, and federal tort claims appear to be subject to dismissal on various grounds.
III. Matters Related to Plaintiff's Motion to Amend
After the hearing of plaintiff's motion to amend, plaintiff filed a "Notice of Claim of Unconstitutionality of Federal Law." Plaintiff states that he has filed this notice pursuant to Local Rule 24-132 to notify the Clerk that the following statutes are unconstitutional: Title III of the Civil Rights Act of 1968 (Fair Housing Act); Title II of the Americans With Disabilities Act of 1990; § 504 of the Rehabilitation Act of 1973; and Title VI of the Civil Rights Act of 1964.
Plaintiff's reliance on Local Rule 24-132 is misplaced. The rule applies when a party "draws in issue the constitutionality of a federal administrative regulation of general applicability" and requires the party to "file a notice... identifying the regulation in issue." Local Rule 24-132(a) (emphasis added). Plaintiff is not challenging federal administrative regulations.
Plaintiff asserts that all of the statutes he has listed are unconstitutional "[a]s the Acts relate to the Department of Housing and Urban Development." The operative complaint in this action does not name the United States of America, HUD, or any HUD employee as a defendant. Nor does that complaint allege that any statute is unconstitutional as it relates to defendants SHRA and Moore. Plaintiff's motion to amend his complaint to join a HUD employee as a defendant has been denied. Because plaintiff's notice of unconstitutionality does not assert that the statutes are unconstitutional as they apply to defendants SHRA and Moore, the notice is irrelevant ...