The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO AMEND (Docket No. 14)
On October 15, 2012, Plaintiff John Morales ("Plaintiff") filed a motion for leave to file a first amended complaint. (Doc. 14.) On November 7, 2012, Defendant Ralphs Grocery Company dba The Kroger Company aka Foods Co. ("Ralphs Grocery") filed an opposition to Plaintiff's motion. (Doc. 17.) Plaintiff filed a reply on November 13, 2012. (Doc. 18.)
The Court reviewed the motion and supporting documents and determined that this matter is suitable for decision without oral argument pursuant to Local Rule 230(g). For the reasons set forth below, Plaintiff's motion to file a first amended complaint is GRANTED.
II. BACKGROUND AND PROCEDURAL HISTORY
On May 4, 2012, Plaintiff filed a complaint against Defendants Ralphs Grocery and Cahan Shields, LLC ("Cahan Shields," collectively "Defendants") alleging causes of action under the American with Disabilities Act of 1990 (the "ADA"), the Disabled Persons Act, the Unruh Civil Rights Act, and for Denial of Full and Equal Access to Public Facilities. (Doc. 2.) On May 30, 2012, Ralphs Grocery filed an answer, and on June 22, 2012, Cahan Shields filed an answer. (Docs. 7, 9.)
A scheduling conference was held on August 28, 2012, and the Court issued a scheduling order on August 31, 2012. (Docs. 11, 12.) The scheduling order provided that any requests to amend the pleadings must be filed by October 15, 2012. (Doc. 12, 2:5-15.)
On September 7, 2012, Plaintiff's counsel served a Demand for Inspection of Land on Property on Defendants setting a site inspection for October 11, 2012; the inspection took place on that date. (Doc. 14-3, Moore Decl., ¶¶ 2-3.) On October 12, 2012, Plaintiff filed a Notice of Settlement as to Defendant Cahan Shields only. (Doc. 13.) On October 14, 2012, Plaintiff's counsel received a copy of the site inspection report. (Doc. 14-3, Moore Decl., ¶ 6.)
Plaintiff filed the instant motion on October 15, 2012. (Doc. 14.) On October 29, Defendant Cahan Shields was dismissed from this action with prejudice. (Doc. 16.) On November 7, 2012, Defendant Ralphs Grocery filed an opposition to the instant motion, and Plaintiff filed a reply on November 13, 2012. (Docs. 17, 18.)
The Court issued a scheduling order on August 31, 2012, stating that "[a]ny motions or stipulations requesting leave to amend the pleadings must be filed by no later than 10/15/2012." (Doc. 12, 2:5-8.) The parties were advised that "[a]ll proposed amendments must (A) be supported by good cause pursuant to Fed. R. Civ. P. 16(b) if the amendment requires any modification to the existing schedule, . . . and (B) establish, under Fed. R. Civ. P. 15(a), that such an amendment is not (1) prejudicial to the opposing party, (2) the product of undue delay, (3) proposed in bad faith, or (4) futile." (Doc. 12, 2:10-15 (citations omitted).)
A. Plaintiff Exhibited Diligence and Good Cause as Required 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 amendment. 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 also 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 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).").
As a scheduling order issued in this action (Doc. 12), the "schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). Whether good cause exists to modify a scheduling order rests on whether the party seeking the modification has been diligent. See Johnson, 975 F.2d at 609. Here, Plaintiff brought this motion within the time constraints set forth by the Court in the scheduling order (Doc. 12, 2:5-8), and did not unduly delay in seeking amendment.
Plaintiff's counsel indicates that a Demand for Inspection of Defendants' property was served on September 7, 2012, and that an inspection occurred on October 11, 2012. (Doc. 14-3, Moore Decl., ¶¶ 2-3.) Plaintiff did not receive a copy of the site inspection report until the morning of Sunday, October 14, 2012, and did not review the report until the next day. (Doc. 14-3, Moore Decl., ¶ 6.) Plaintiff was unable to obtain a stipulation from counsel for Defendant Ralph's Grocery allowing for amendment to the complaint. (Doc. 14-3, Moore Decl., ¶¶ 5, 7.) As such, Plaintiff filed the instant motion on October 15, 2012, seeking leave to file a first amended complaint. The motion was filed the same day that Plaintiff's counsel initially reviewed the site inspection report and on the date set forth in the Court's scheduling order as the deadline for the parties to seek amendment to the pleadings. (See Doc. 12, 2:5-15; Doc. 14.)
In opposition, Defendant Ralphs Grocery notes that Plaintiff seeks amendment six months after the initial complaint was filed and two months prior to the non-expert discovery deadline. (Doc. 17, 4:3-27.) While Ralphs Grocery seems to be inferring that Plaintiff delayed in seeking ...