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Mogel v. Hanni

United States District Court, Ninth Circuit

January 10, 2014

MARK MOGEL, Plaintiff,


LAUREL BEELER, Magistrate Judge.

On April 11, 2013, pro se Plaintiff Mark Mogel filed a complaint against Defendant Kathleen Hanni alleging impersonation through an internet website, "conspiracy, " and defamation. Complaint, ECF No. 1 at 7-11.[1] After Hanni answered the complaint, the court held an initial case management conference and set November 25, 2013 as the deadline for Mogel to seek leave to amend the complaint or add parties. In the pending motion, which was filed on or just after the deadline, Mogel seeks leave to file an amended complaint that would name additional defendants and add a claim for invasion of privacy. See Motion and Proposed First Amended Complaint, ECF No. 34. The court finds this matter suitable for disposition without a hearing under Civil Local Rule 7-1(b) and GRANTS Mogel's request to file the Proposed First Amended Complaint.


In his original complaint, Mogel alleges that Defendant Kathleen Hanni is liable for conspiracy and defamation both "individually and as executive director for the COALITION FOR AN AIRLINE PASSENGER'S BILL OF RIGHTS, a/k/a FLYERSRIGHTS.ORG, and as director for the FLYERS RIGHTS EDUCATION AND ASSISTANCE CORPORATION, and as owner-operator of KATE HANNI REAL ESTATE." See Complaint at 1. Mogel alleges that from July 2007 to August 2009, he and Hanni engaged in an extra-marital affair. Complaint at 3-5. Both during and after the affair, Hanni defamed Mogel by falsely telling associates that Mogel "drugged and raped her after she was caught spending the night with" him. Id. at 4. Hanni also filed a false police report that accused Mogel of hacking her computer, stealing a sex video, and attempting to extort money from her. Id. Hanni filed a lawsuit against Delta Airlines based on similar allegations of computer hacking and extortion. Id. at 5. In an article published in Travel Weekly, a national travel publication, Hanni accused Mogel of being involved in that conspiracy. Id. The FBI and other law enforcement agencies investigated the allegations and concluded they were fabricated. Id. at 5-6. Hanni subsequently dismissed her lawsuit against Delta two weeks before Mogel's deposition. Id. at 6. In order to clear his name, Mogel published a book titled "Diverted: High Fliers and Frequent Liars, " which was published in March 2012. Id.

Beginning on or about April 12, 2012, Hanni acquired the websites and, on which she impersonated Mogel and made false allegations about him and his book. Id. at 7. Around the same time, Hanni also acquired the e-mail address, which she used to impersonate Mogel and send e-mail messages to reporters, attorneys, and private individuals, directing them to the website. Id. at 7-8. Hanni also conspired with third parties to post false, defamatory allegations and book reviews on Finally, on May 15 or 16, 2012, Hanni acquired the website, on which she published additional defamatory comments. Id.

Hanni answered the complaint on August 22, 2013. See ECF No. 15. The court held an initial case management conference on October 24, 2013. See Minute Entry, ECF No. 30. On October 31, 2013, the court issued a Case Management and Pretrial Order that set November 25, 2013 as the deadline to seek leave to add new parties or amend the pleadings. See CMC Order, ECF No. 33 at 2.

On December 3, 2013, Mogel filed[2] a motion for leave to file an amended complaint along with a copy of his proposed first amended complaint ("PFAC"). See Motion, ECF No. 34.

There are three main differences between the PFAC and the original complaint. First, the PFAC names as defendants the Coalition for an Airline Passengers Bill of rights, LLC and the FlyersRights Education and Assistance Corporation (collectively, the "Organization Defendants"). See PFAC, ECF No. 34 at 6. In contrast, Hanni is the only defendant named in the original complaint (individually and in her capacities in the Organization Defendants and Kate Hanni Real Estate). Compare PFAC, with Complaint, ECF No. 1 at 1. Second, the PFAC relies on an additional exhibit that Mogel contends shows that the Coalition for an Airline Passengers' Bill of Rights owned the domain. Motion at 2. Finally, the PFAC includes an additional claim for invasion of privacy. See PFAC ΒΆΒΆ 63-72.


Hanni opposes the motion to amend, arguing that it is untimely and legally deficient and she would suffer prejudice as a result of the amendment. See Opp'n, ECF No. 37.

Under Federal Rule of Civil Procedure 15(a), leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); see Sonoma Cnty. Ass'n of Retired Employees v. Sonoma Cnty., 708 F.3d 1109, 1118 (9th Cir. 2013). Because "Rule 15 favors a liberal policy towards amendment, the nonmoving party bears the burden of demonstrating why leave to amend should not be granted." Genentech, Inc. v. Abbott Laboratories, 127 F.R.D. 529, 530-31 (N.D. Cal. 1989) (citation omitted). Courts generally consider five factors when assessing the propriety of a motion for leave to amend: undue delay, bad faith, futility of amendment, prejudice to the opposing party and whether the party has previously amended the pleadings. Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 n.3 (9th Cir. 2009).

Where a party seeks leave to amend after the date specified in a scheduling order, Rule 16(b) also applies. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). Under Rule 16(b), "[a] schedule shall not be modified except upon a showing of good cause and by leave of the district judge." Id .; see Fed.R.Civ.P. 16(b)(4). Therefore, a party seeking to amend a pleading after the date specified in a scheduling order must first show "good cause" for the amendment under Rule 16(b), and second, if good cause is shown, the party must demonstrate that the amendment is proper under Rule 15. Id.

In order to determine whether good cause exists to modify the scheduling order, courts focus on the reasonable diligence of the moving party. See Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir. 2007); see also Johnson, 975 F.2d at 609 (stating that "carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief" under Rule 16(b); adding that "the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, [but] 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." Johnson, 975 F.2d at 609.

The parties dispute whether Mogel's motion was filed on or after the November 25 deadline in the court's scheduling order. See Opp'n at 2; Reply at 2, 6-8. Hanni points out that the docket shows that the motion was filed on December 3, 2013. See Docket. In reply, however, Mogel argues that FedEx delivered his motion to the Clerk's Office by the November 25 deadline and he attaches a FedEx proof-of-delivery document that supports his argument. See Reply at 8. The court accepts Mogel's evidence showing that his motion was timely delivered ...

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