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Deleon v. Time Warner Cable LLC

February 22, 2010


The opinion of the court was delivered by: Andrew J. Guilford United States District Judge


Plaintiff Saul Deleon ("Plaintiff") filed a Motion for Leave to File Third Amended Complaint ("Motion") to add a new defendant, Time Warner NY Cable LLC ("TWNYC"), to this wage and hour class action. Defendants Time Warner Cable LLC, Time Warner Cable, Inc., Time Warner Cable Services LLC, and Time Warner Cable Shared Services ("Defendants") oppose the Motion, arguing that it is untimely and that Plaintiff has not shown good cause for leave to filed an amended complaint after the scheduling order deadline had passed. After considering all papers and arguments submitted, the Court DENIES the Motion.


Plaintiff filed a wage and hour class action complaint against Defendants in April 2009. According to Plaintiff, he did not include TWNYC as a defendant because Time Warner Shared Services, not TWNYC, was identified as Plaintiff's employer on Plaintiff's check and wage statement. (Declaration of Mónica Balderrama ("Balderrama Decl.") Ex. C.)

Plaintiff filed a Second Amended Complaint ("SAC") in early August 2009, still without TWNYC as a defendant. Shortly after, Defendants sent a letter to Plaintiff asserting that he was not employed by Defendants and offering to substitute TWNYC, which Defendants claimed was Plaintiff's real employer, for Defendants. (Declaration of Joseph Ozmer ("Ozmer Decl.") ¶ 2.) Plaintiff rejected Defendants' offer, instead offering substitution only if Defendants agreed to toll the statute of limitations on Plaintiff's claims against Defendants. (Ozmer Decl. ¶ 3.) Defendants declined Plaintiff's proposal, and then filed an Answer denying that Defendants employed Plaintiff. (Answer ¶ 21). Similar offers and rejections occurred in September and October. (Ozmer Decl. ¶¶ 3-5.)

During discovery in September, there was some confusion over whether TWNYC was a party to this lawsuit. In two discovery related documents, Defendants listed the propounding parties as "Defendants TIME WARNER CABLE LLC, TIME WARNER CABLE SERVICES LLC and TIME WARNER NY CABLE LLC (incorrectly identified by Plaintiff as 'Time Warner Cable, Inc.')." (Declaration of Christian Counts, Exs. F and G.)

This confusion cleared up in October. On October 1, 2009, Defendants stated in the 26(f) Joint Report that Plaintiff was not their employee. (Joint Report ¶ 4.) In late October, Defendants provided verified interrogatory responses under oath asserting that Plaintiff was not Defendants' employee, and was instead employed by TWNYC. (Mot., Ex. D 3-4, ¶¶ 6-8.)

Plaintiff again proposed a tolling agreement in exchange for a defendant swap on November 3. (Balderrama Decl. ¶ 8.) Defendants never responded. (Balderrama Decl. ¶ 9.) In early December, Plaintiff did not dispute at his deposition that he is not employed by Defendants. (Ozmer Decl. ¶ 8.)

On October 19, 2009 the Court entered a Scheduling Order, which said: "Absent exceptional circumstances, any motion to join another party or to amend the pleading shall be filed and served within 60 days after the date of this Order and noticed for a hearing occurring within 90 days after the date of this Order." (Scheduling Order ¶ 3.) The resulting deadline for amending the pleading or joining a party was December 18, 2009.

On January 25, 2010, Plaintiff filed this Motion, seeking to amend the SAC. Plaintiff's proposed Third Amended Complaint adds TWNYC as a defendant. There are no other changes.


Plaintiff seeks to amend his complaint under Federal Rule of Civil Procedure 15(a), but a party attempting to amend a pleading after the date specified in a scheduling order must first satisfy the "good cause" standard of Federal Rule of Civil Procedure 16(b). See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992) (finding the "extraordinary circumstances" scheduling order standard as rigorous as the "good cause" standard under 16(b)).

"Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s 'good cause' standard primarily considers the diligence of the party seeking the amendment." Johnson, 975 F.2d at 609. When evaluating whether a party was diligent, the Ninth Circuit has determined that "the focus of the inquiry is upon the moving party's reasons for modification. If that party was not diligent, the inquiry should end." Id. at 610. A finding of "carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Id. at 609. Only after ...

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