The opinion of the court was delivered by: The Honorable David O. Carter, Judge
[I hereby certify that this document was served by first class mail or Government messenger service, postage prepaid, to all counsel (or parties) at their respective most recent address of record in this action on this date.]
Date:____________ Deputy Clerk:
Julie Barrera Not Present Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:
NONE PRESENT NONE PRESENT
PROCEEDING (IN CHAMBERS): GRANTING LEAVE TO FILE FIRST AMENDED ANSWER
AND COUNTERCLAIM AND GRANTING, IN PART, MOTION FOR LEAVE TO SET DEADLINE
Before the Court are a Motion to Amend Answer and Counterclaim filed by Defendant PacsGear, Inc. ("PacsGear") ("Motion to Amend") (Docket 33) and a Motion for Leave to Set Deadline to Serve an Expert Report filed by Plaintiff DatCard Systems, Inc. ("DatCard") ("Motion to Set Deadline") (Docket 39). The Court finds this matter appropriate for decision without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. After considering the moving, opposing and replying papers thereon, the Court GRANTS Defendant's Motion to Amend and GRANTS, in part, Plaintiff's Motion to Set Deadline.
PacsGear seeks leave to file an Amended Answer and Counterclaim so that it may allege with specificity the rationale behind its Ninth Affirmative Defense for inequitable conduct. The facts added to supplement the pleading were discovered during the deposition of DatCard's President, Ken Wright ("Mr. Wright") on August 12, 2011. Plaintiff DatCard opposes such amendment but, if the Motion to Amend is granted, Plaintiff seeks leave of the Court to file a rebuttal expert report after the scheduled deadline.
Generally, leave to amend a pleading "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). However, the standard governing whether amendment should be permitted "becomes progressively more difficult to meet as litigation proceeds toward trial." Byrd v. Guess, 137 F.3d 1126, 1131 (9th Cir. 1998). Pursuant to Rule 16 of the Federal Rules of Civil Procedure, once the district court enters a scheduling order setting forth a deadline for the amendment of pleadings, the schedule "shall not be modified except upon a showing of good cause." Fed. R. Civ. P. 16(b); see also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (good cause exists "if [the schedule] cannot reasonably be met despite the diligence of the party seeking the extension") (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). Rule 16(b)'s "good cause" standard "primarily considers the diligence of the party seeking the amendment." Johnson, 975 F.2d at 609 ("carelessness is not compatible ...