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De La Riva Construction, Inc v. Marcon Engineering

January 30, 2013


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge


Pending before the Court is Plaintiff De La Riva Construction, Inc.'s motion to strike Defendants Marcon Engineering, Inc.'s, Travelers Casualty Insurance Company of America's, and Fidelity and Deposit Company of Maryland's ("Defendants") Second Amended Answer. For the reasons stated below, the Court finds that Federal Rule of Civil Procedure 16(b)*fn1 is the correct standard to determine whether Defendants may file a Second Amended Answer. The Court further finds that Defendants do not satisfy Rule 16(b) and accordingly GRANTS Plaintiff's motion to strike. v. INC.'S MOTION TO STRIKE


On January 10, 2011, Plaintiff filed a Complaint alleging five claims against Defendants. [Doc. No. 1.] On February 4, 2011, Defendants filed an Answer. [Doc. No. 5.] At a scheduling conference held on August 4, 2011, the Court issued a Scheduling Order requiring "any motion to join other parties, to amend the pleadings, or to file additional pleadings be filed on or before September 9, 2011." [Doc. No. 12 at 2.] On March 28, 2012, the Court issued an Amended Scheduling Order that extended the discovery cutoff date to October 22, 2012, but did not extend the long-passed deadline to amend pleadings. [Doc. No. 21 at 2.] Nonetheless, on April 13, 2012, Defendants filed a First Amended Answer, which asserted twenty-four affirmative defenses. [Doc. No. 23 at 3-6.] On October 15, 2012, just seven days before the close of discovery, and without filing a motion for leave to modify the scheduling order, Defendants filed a Second Amended Answer. [Doc. No. 28.] The Second Amended Answer asserts three additional affirmative defenses: mutual mistake, unilateral mistake, and fraud. [Doc. No. 28 at 6.]

On November 19, 2012, Plaintiff filed the present Motion to Strike Second Amended Answer. [Doc. No. 34-1.] Plaintiff argues that "[t]he Second Amended Answer includes brand new theories" and "the new answer is filed at a date so late that Plaintiff has no opportunity to conduct discovery with regard to these theories." [Doc. No. 34-1 at 1-2.] Plaintiff further asserts that Rule 16(b) is the correct standard that governs whether the Second Amended Answer may be filed. [Doc. No. 45 at 3.] Defendants argue that the additional "affirmative defenses are based only on known facts of the case." [Doc. No. 44 at 4.] Moreover, Defendants contend that Rule 15(a) is the correct standard.

Plaintiff requests the Court strike the Second Amended Answer or regard it as a legal nullity. [Doc. No. 45 at 10.] Defendants request the Court allow the Second Amended Answer to remain on file, or in the alternative, that they be granted leave to file another amended answer. [Doc. No. 44 at 1.]


Defendants discuss at length the liberal amendment policy of Rule 15(a). Plaintiff does not dispute that Rule 15's policy favoring amendments is applied liberally. Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185-87 (9th Cir. 1987). Under Rule 15(a), leave to amend should be granted as a matter of course, at least until the defendant files a responsive pleading. After that point, leave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay. Ascon Props., Inc., 866 F.2d at 1159.

Nonetheless, Rule 15 does not provide the standards with which the Court considers Defendants' late filing of the Second Amended Answer. Once the district court files a pretrial scheduling order pursuant to Rule 16, which establishes a timetable for amending pleadings, Rule 16 controls and provides in part: "[the Court] . . . must issue a scheduling order . . . [to] limit the time to join other parties, amend the pleadings, complete discovery, and file motions. . . . A schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(1), (b)(4).

The decision to modify a scheduling order is within the broad discretion of the district court. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (quoting Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985)). Rule 16 provides a stringent standard whereby the party who seeks to amend the Court's scheduling order must show "good cause" why the Court should set aside or extend a pleading deadline. See Fed. R. Civ. P. 16(b)(4). The scheduling order may only be amended with the Court's consent. Id.

Under Rule 16(b)'s good cause standard, the Court's primary focus is on the movant's diligence in seeking the amendment. Johnson, 975 F.2d at 609. "Good cause" exists if a party can demonstrate that the schedule "cannot reasonably be met despite the diligence of the party seeking the extension." Id. (citing Fed. R. Civ. P. 16 advisory committee's notes (1983 amendment)). "[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant 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." Id. (citations omitted). If the party seeking modification was not diligent in his or her pretrial preparations, the inquiry should end there and the measure of relief sought from the Court should not be granted. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002); Johnson, 975 F.2d at 609. The party seeking to continue or extend the deadlines bears the burden of proving good cause. See Zivkovic, 302 F.3d at 1087; Johnson, 975 F.2d at 608.

In addressing the diligence requirement, a sister court has noted:

[T]o demonstrate diligence under Rule 16's "good cause" standard, the movant may be required to show the following: (1) that she was diligent in assisting the Court in creating a workable Rule 16 order; (2) that her noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that ...

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