The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Plaintiff Peter Eckert, who is legally blind, filed suit against the City of Sacramento (the City) in May 2007, alleging that the lack of detectable warnings at certain intersections in downtown Sacramento where railroad tracks cross the sidewalk violates the Americans with Disabilities Act (ADA) as well as provisions of the California Civil Code. (Compl. at 2.) On January 23, 2008, Plaintiff filed a first amended complaint that named the City and Union Pacific Railroad Company (Union Pacific) as Defendants. (Docket No. 14.) On July 17, 2009, Union Pacific moved for summary judgment on Plaintiff's claims.
(Docket No. 52.) Three days later, on July 20, 2009, the City filed a motion in which it seeks leave to file an amended answer for the purpose of alleging a cross-claim against Union Pacific. (Docket. No. 59.) For the reasons stated below, the City's motion for leave to amend is DENIED and Union Pacific's motion for summary judgment is GRANTED.
I. City's Motion for Leave to Amend Answer
Plaintiff opposes the City's motion, arguing that allowing the amendment would be prejudicial as discovery would need to be re-opened and the trial date delayed. (Pl.'s Opp'n. to City's Mot. for Leave to Amend 1.) Union Pacific also opposes the City's motion, arguing that the City has failed to show good cause as required by Federal Rule of Civil Procedure 16(b)(Rule 16). (Union Pacific's Opp'n. to City's Mot. for Leave to Amend 1.) The City replies good cause justifies granting its motion since the City reasonably relied on Union Pacific's representations that the dispute could be resolved through settlement. (City's Reply to Union Pacific's Opp'n. 1.)
A. Standard For Amendment Under Rule 16
Rule 16(b) provides that a pretrial scheduling order "may be modified only for good cause and with the judge's consent." FED. R. CIV. P. 16(b)(4). Therefore, after the issuance of a pretrial scheduling order, a party seeking leave to amend a pleading must first demonstrate that there is "good cause" to modify the scheduling order. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-8 (9th Cir. 1992). Only if the moving party can show good cause to modify the scheduling order is Rule 15's standard for amendment considered. Id. at 608.
"Good cause" for purposes of Rule 16 focuses on the diligence of the party seeking to modify the pretrial scheduling order. Johnson, 975 F.2d at 609. "If [a] party was not diligent, the inquiry should end." Id. A finding of carelessness is incompatible with a showing of diligence and offers no grounds for granting relief. Id. While prejudice to the opposing parties may supply an additional reason for denying a motion to modify the scheduling order, Rule 16's inquiry focuses on the moving party's reasons for seeking an amendment. Id.
The pretrial scheduling order filed August 6, 2007 prohibited amendment of pleadings absent leave of the court and a showing of "good cause." (Docket No. 7.) The City, therefore, must satisfy Rule 16's good cause standard before this provision of the order can be amended. The City, however, has not specifically moved for modification of the no further amendment provision of the pretrial scheduling order. Nonetheless, its motion will be considered a de facto motion to amend the scheduling order. See Johnson 975 F.2d at 609.
Union Pacific argues the City has not shown diligence to justify allowing it to amend the pretrial scheduling order. Union Pacific argues the City has known for at least two years of the facts and law upon which its cross-claim is based. (Union Pacific's Opp'n. to City's Mot. for Leave to Amend 5-6.) The City does not dispute this assertion. Instead, the City rejoins that good cause exists as a result of the City's reliance on Union Pacific's representations that the matter could be resolved through settlement. The City argues Union Pacific and the City were engaged in settlement discussions from May 2008 until April 2009. (City's Mot. For Leave to Amend 3-4.)
Union Pacific entered this case as a Defendant on January 23, 2008. (Docket No. 14.) The City filed an answer to the first amended complaint on February 11, 2008 (Docket No. 16), raising as an affirmative defense that it does not own or have control over the portion of the sidewalk at issue. (City's Ans. to Am. Compl. 6:17-19.) Discovery closed on June 17, 2009 and the trial commencement date is January 26, 2010. (Docket No. 27.) Nonetheless, the City did not seek leave to assert its cross-claim until it filed its motion to amend its answer on July 20, 2009 - a year and a half after Union Pacific was joined as a defendant in this action and three months after settlement discussions with Union Pacific apparently collapsed. (See City's Reply to Union Pacific's Opp'n. 2:21-23.) Such delay does not justify finding the City was diligent.
Moreover, ongoing settlement negotiations do not constitute good cause justifying modification of the pretrial scheduling order in this case. See Brooks v. Eclipse Recreational Vehicles, Inc., 2009 WL 1616017, at *3 (D. Ariz. June 9, 2009)(finding that settlement negotiations do not constitute good cause for purposes of Rule 16). It is neither reasonable nor diligent to wait until settlement negotiations have deteriorated before seeking leave to assert a cross-claim.
The City also argues its crossclaims against Union Pacific are compulsory and will be lost if not brought in this action. (City's Reply to Pl.'s Opp'n. 2.) However, the City has not shown that the cross-claim it seeks to file is compulsory. See Peterson v. Watt, 666 F.2d 362, 363 (9th Cir. 1982)(indicating crossclaims are permissive). Even if the City is required to litigate the allegations it desires to litigate against Union Pacific in a separate lawsuit, "Rule 16 and the court's scheduling order are not optional directives; the court is bound by them. A loss of ...