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Alfred Gonzales and Kelly Gonzales v. Comcast Corporation

May 12, 2011


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge


(Docket No. 47)


On May 3, 2010, Plaintiffs Alfred Gonzales and Kelly Gonzales, individually and on behalf of all others similarly situated ("Plaintiffs"), filed a complaint against Comcast Corporation ("Comcast") stating claims for (1) violation of the Unfair Business Practices Act codified at Cal. Bus. & Prof. Code § 17200 et seq., (2) violation of the Deceptive Practices Consumer Legal Remedies Act codified at California Civil Code § 1750 et seq., and (3) breach of contract. (Doc. 1-1.) According to the complaint, Comcast is a provider of cable television, among other things, for which Plaintiffs contracted for service. Comcast allows customers to enroll in an automatic payment program whereby customers pay for the services Comcast provided through an electronic funds transfer ("EFT") which create automatic and recurring payment of funds through the enrolled customer's bank account ("EFT Agreement"). (Doc. 1-1, ¶¶ 25, 31.) The EFT Agreement provides that customers have the right to revoke the authorization for the automatically recurring EFTs at any time and that any revocation takes effect three days after receipt of such revocation. (Doc. 1-1, ¶ 26.) Plaintiffs assert that they enrolled in the EFT program (Doc. 1-1, ¶ 27), subsequently cancelled their Comcast service in October 2008, and returned all the Comast equipment on November 7, 2008 (Doc. 1-1, ¶ 28). Plaintiffs received a notice stating that their ending balance on November 7, 2008, was $0.00. (Id.) Despite this, Plaintiffs assert that Comcast continued to charge Plaintiffs, via EFTs, for the months of November and December 2008 and January 2009. Plaintiffs assert that they have "not received full refunds for the unauthorized post-cancellation EFT charges billed to their credit or debt card accounts." (Doc. 1-1, ¶ 29.) Comcast allegedly issued a letter to Plaintiffs stating that they had been reimbursed in full for all unauthorized EFTs, but Plaintiffs maintain that they "were not paid back for all the funds that were taken out of their bank accounts after their authorization of EFTs was revoked." (Doc. 1-1, ¶ 31.) Plaintiffs assert that they were charged more in service fees than they owed. (Doc. 1-1, ¶ 33.)

On June 3, 2010, Comcast removed the case to this Court. After a scheduling conference, the Court issued a scheduling order on August 11, 2010, setting deadlines for initial disclosures, class discovery, and the filing of a motion for class certification. Specifically, initial disclosures were to be completed no later than August 30, 2010, class discovery was to be completed no later than January 28, 2011, and Plaintiff was to file a motion for class certification no later than February 28, 2011. (Doc. 25.)

On August 19, 2010, Plaintiffs served their first set of Requests for Production of Documents ("RFPs") on Comcast.*fn1 (Doc. 49, ¶ 4). Comcast served responses and objections on September 23, 2010. (Doc. 51-1, ¶ 2; Doc. 49, ¶ 5.) Comcast's response to the RFPs did not include any documents due to Comcast's need for a confidentiality agreement prior to disclosure. (Doc. 49, ¶ 5; Doc. 51-1, ¶ 2.) On November 2, 2010, Comcast sent a proposed confidentiality agreement to Plaintiff. (Doc. 51-1, ¶ 3.)

On November 22, 2010, the parties filed a Joint Mid-Class Discovery Status Report indicating that a confidentiality agreement with regard to discovery documents was necessary and would be submitted shortly for the Court's approval. On November 30, 2010, the parties filed a stipulated request for a protective order with the Court, which was granted on December 17, 2010. (Docs. 28, 29.)

On December 27, 2010, Plaintiff served a set of Requests for Admissions and noticed the Rule 30(b)(6) deposition of Comcast for January 25, 2011.

On February 2, 2011, the parties agreed to extend the class-discovery deadline to complete four scheduled depositions.*fn2 (See Docs. 30, 32, and 36.) Comcast took the deposition of Plaintiffs Kelly Gonzales and Alfred Gonzales on February 1 and 2, 2011, respectively. Plaintiffs conducted the deposition of Laurie Giammona, Comcast's Vice President of Customer Care for California, on February 3, 2011, and conducted the deposition of Patricia Thorell, Vice President of Payment Processing, on February 4, 2011. (See Doc. 32, 3:7-11.)

On February 28, 2011, Plaintiffs filed a motion to modify the scheduling order and to amend the complaint to include a new cause of action under the Electronic Funds Transfer Act ("EFTA") pursuant to 15 U.S.C. § 1693, et seq. (Doc. 32.) On March 18, 2011, Comcast filed an opposition to Plaintiffs' motion to amend the complaint. (Doc. 39.) On March 29, 2011, Plaintiffs sought an order allowing them to withdraw and amend their motion. Plaintiffs asserted that Comcast's opposition brief had identified some meritorious objections to Plaintiffs' proposed amended complaint, particularly Plaintiffs' proposed claim under the EFTA. (Docs. 44, 45.) Plaintiffs' request was granted; thus, Plaintiffs amended their motion to amend the complaint, and submitted a new proposed amended complaint. (Doc. 49-1, Exhibit A.)


A. Legal Standards

1. Standard for Modifying the Schedule Under Federal Rule of Civil Procedure 16(b)

Federal Rule of Civil Procedure 16(b) provides that the district court must issue a scheduling order that limits the time to join other parties, amend the pleadings, complete discovery, and file motions. Fed. R. Civ. P. 16(b)(1)-(3). Once in place, "[a] schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). The "good cause" requirement of Rule 16 primarily considers the diligence of the party seeking the modification of the schedule. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). "The district court may modify the pretrial schedule if it cannot reasonably be met despite the diligence of the party seeking the extension." Id. (internal citation and quotation marks omitted).

Good cause may be found to exist where the moving party shows, for example, that it: (1) diligently assisted the court in recommending and creating a workable scheduling order, see In re San Juan Dupont Plaza Hotel Fire Litig., 111 F.3d 220, 228 (1st Cir. 1997), (2) is unable to comply with the deadlines contained in the scheduling order due to issues not reasonably foreseeable at the time of the scheduling order, see Johnson, 975 F.3d at 609, and (3) was diligent in seeking an amendment once the party reasonably knew that it could not comply with the scheduling order, see Eckert Cold Storage, Inc. v. Behl, 943 F. Supp. 1230, 1233 (E.D. Cal. 1996). See Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999). "If [the] party was not diligent, the inquiry should end." Johnson, 975 F.2d at 609. If the Court finds that there is good cause to modify the schedule, the court then turns to Rule 15(a) to determine whether the amendment to the pleadings sought should be granted. Jackson, 186 F.R.D. at 607 ("As the Ninth Circuit explained in [Johnson], once the district court has filed a pretrial scheduling order pursuant to Rule 16 which establishes a timetable for amending pleadings, a motion seeking to amend pleadings is governed first by Rule 16(b), and only secondarily by Rule 15(a).").

2. Standard for Amendment Under Federal Rule of Civil Procedure 15(a)

Federal Rule of Civil Procedure 15 provides that a party may amend its pleading only by leave of court or by written consent of the adverse party and that leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(1)-(2). The Ninth Circuit has instructed that the policy favoring amendments "is to be applied with extreme liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).

The factors commonly considered to determine the propriety of a motion for leave to amend are: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and (4) futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). The Ninth Circuit has held that the consideration of prejudice to the opposing party carries the greatest weight. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Absent prejudice, or a strong showing of any of the remaining Foman factors, a presumption in favor of granting leave to amend exists under Rule 15(a). Id. Further, undue delay alone is insufficient to justify denial of a motion to amend. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999). Finally, "liberality in granting leave to amend is not dependent on whether the amendment will add causes of action or parties." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Contra Union Pac. R.R. Co. v. Nev. Power Co., 950 F.2d 1429, 1432 (9th Cir. 1991) ("Amendments seeking to add claims are to be granted more freely than amendments adding parties.").

B. Good Cause Exists for a Schedule Modification Pursuant to Fed. R. Civ. P. 16

Here, there is no express deadline in the Court's scheduling order limiting the time for seeking an amendment to the pleadings. The scheduling deadlines set by the Court relate only to the time for initial disclosures, class discovery, and the filing of a motion for class certification. Nevertheless, the amendment to the complaint sought necessarily requires revision of each of these deadlines as additional class discovery may be necessary and because the deadline to file a motion for class certification has expired. Therefore, the modification of the schedule that amendment of the pleadings will require is governed by the good cause parameters of Rule 16(b); the proposed amended complaint itself is subject to the limitations of Rule 15(a).

Plaintiffs assert that they learned new facts during depositions of Comcast employees on February 3 and 4, 2011, that necessitate amendment of the complaint. Plaintiffs assert that the initial motion to amend the complaint was sought within two weeks of reviewing the transcripts of those depositions. (Doc. 48, 7:25 - 8:1.) Plaintiffs contend that, prior to the Comcast depositions, they were unable to determine which Comcast customer agreement was in effect at the time of Plaintiffs' dispute with Comcast. Additionally, Comcast's policies with regard to refund, termination of service, and billing as set forth in their customer agreements were "unintelligible." ...

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