The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
This action proceeds against Defendant Sentry Credit, Inc. ("Defendant"), on Plaintiff Robert Langley's ("Plaintiff") First Amended Complaint, which alleges violations of the Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., and the Rosenthal Fair Debt Collection Practices Act, California Civil Code § 1788, et seq. Presently before the Court is Plaintiff's Motion for Leave to Amend Complaint (ECF No. 18).*fn1 For the following reasons, Plaintiff's Motion is GRANTED.
Plaintiff originally initiated this action as an unfair debt collection practices case that was based on Defendant's purportedly harassing telephone calls to Plaintiff. On July 28, 2011, this Court issued a Pretrial Scheduling Order ("PTSO") setting July 6, 2012, as the deadline for completion of non-expert discovery, September 6, 2012, as the deadline for expert disclosure, December 6, 2012, as Defendant's dispositive motion filing cut-off, and May 6, 2013, as the date for trial. In the PTSO, the Court also specified that "[n]o joinder of parties or amendments to pleadings is permitted without leave of court, good cause having been shown." PTSO, 1:24-25.
Plaintiff subsequently served Defendant with discovery requests, including a request for the production of any recordings of Defendant's phone calls to Plaintiff. Defendant served its responses to those requests on October 26, 2011. Plaintiff thereafter served follow-up requests for production to Defendant to learn whether Defendant had employed any pre-recorded messages informing Plaintiff the calls to her might be recorded. On approximately December 22, 2011, Plaintiff received Defendant's subsequent responses, which confirmed that Defendant had failed to warn Plaintiff her telephone calls were being recorded or to obtain her consent to do so.
At that point, Plaintiff sought and retained experienced class counsel who associated in the matter on January 20, 2012. Shortly thereafter, on January 31, 2012, Plaintiff filed her instant Motion for Leave to File a Second Amended Complaint, by which she seeks to add four class-based causes of action arising out of Defendant's allegedly illegal recording of class members' confidential telephone conversations without their consent. Two of Plaintiff's proposed causes of action are alleged on behalf of a California class pursuant to California Penal Code § 632, which prohibits the recording of confidential telephone calls without all parties' consent, and the right to privacy included in California Constitution, Article I, Section I. One of her other proposed claims is alleged, as an alternative to the California class claims, on behalf of a nationwide class under Washington Revised Code § 9.73.060, and the final proposed cause of action is alleged on behalf of both classes under a negligence per se theory. Plaintiff's Motion is now GRANTED, and she will be permitted leave to add these class claims.
Typically, leave to amend should be "freely give[n]...when justice so requires." Fed. R. Civ. Pro. 15(a)(2). Once a district court has filed a pretrial scheduling order pursuant to Rule 16, as this Court did here on July 28, 2011, however, the standards set forth by Rule 16 control. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992); see also PTSO, 1:24-25.
"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. In explaining this standard, the Ninth Circuit has stated that:
[a] district court may modify the pretrial schedule 'if it cannot reasonably be met despite the diligence of the party seeking the extension.' Moreover, carelessness is not compatible with a finding of diligence and offers no reason for granting of relief. Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end.
Id. (citations omitted). To demonstrate diligence under Rule 16's "good cause" standard, courts have required movants to show that: 1) they were diligent in assisting the Court in creating a workable Rule 16 order; 2) despite their diligent efforts to comply, their noncompliance with a Rule 16 deadline occurred because of the development of matters that could not have been reasonably foreseen or anticipated; and 3) they were diligent in seeking amendment of the Rule 16 order, once it became apparent that they could not comply with the order. Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (internal citations omitted).
According to Plaintiff, good cause exists to justify further amendment of her First Amended Complaint here because she did not know and could not have known prior to conducting discovery that her calls with Defendant were recorded. Plaintiff thus contends that in prosecuting her originally filed action, she diligently pursued discovery, which, on December 19, 2011, resulted in confirmation that Defendant had, without notice to her and without her consent, recorded her phone calls. Plaintiff thereafter promptly hired class counsel and filed her instant Motion. Plaintiff further argues that she is already preparing class-based discovery and that she intends to file her motion for class certification prior to May 23, 2012. Plaintiff thus avers that amendment of her FAC will not require modification of the deadlines set by the Court in the PTSO.
Defendant disagrees, of course, arguing Plaintiff has been dilatory in seeking amendment and that any amendment will be futile. More specifically, Defendant believes Plaintiff unjustifiably delayed bringing her instant Motion because she waited three months after receiving the recordings ...