United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST SUPPLEMENTAL AND AMENDED COMPLAINT
(ECF NO. 34)
CYNTHIA BASHANT, District Judge.
On December 11, 2012, Plaintiff Benchmark Young Adult School, Inc. dba Benchmark Transitions ("Plaintiff") commenced this action against Defendants Launchworks Life Services, LLC dba Mark Houston Recovery Center and Benchmark Recovery Center for federal trademark infringement, false designation of origin, unlawful trade name use, California common law trademark infringement, and unfair competition and unfair business practices. Plaintiff now moves for leave to file a first supplemental and amended complaint. (ECF No. 34.) Defendant Page 2> Launchworks Life Services, LLC dba Benchmark Recovery Center fka Mark Houston Recovery Center ("Defendant") opposes. (ECF No. 41.)
The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion for leave to file a supplemental and amended complaint.
On December 11, 2012, Plaintiff commenced this action, asserting claims for federal trademark infringement, false designation of origin, unlawful trade name use, California common law trademark infringement, and unfair competition and unfair business practices. (ECF No. 1 ("Complaint").) On February 1, 2013, Defendant filed an Answer. (ECF No. 6.) Pursuant to a stipulation between the parties and Court order thereon, on July 3, 2013, Defendant filed an amended Answer and Counterclaim seeking a declaration of non-infringement and a declaration of unenforceability and/or invalidity. (ECF Nos. 23-26.)
On June 5, 2013, Magistrate Judge Skomal issued the Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings ("Scheduling Order") in this matter which provided that the deadline to file any motion to amend the pleadings was June 29, 2013. (ECF No. 22.) On September 24, 2013, the parties jointly moved to continue several dates in the Scheduling Order, including the fact and expert discovery deadlines, because "due to technological snafus in the gathering and processing of electronically stored information, neither Party ha[d] produced responsive documents." (ECF No. 27.) In their joint motion, the parties did not request an extension of time to file a motion to amend the pleadings. ( See id. ) On October 1, 2013, Magistrate Judge Skomal granted the joint motion, in part, which, among other things, extended the fact discovery deadline to November 29, 2013 and the expert discovery deadline to March 28, 2014. (ECF No. 28 ("Amended Scheduling Order".)
On January 22, 2014, Plaintiff filed the present motion. (ECF No. 34 at p. 2.) Plaintiff initially sought leave to file a supplemental and amended complaint pursuant to Federal Rules of Procedure 15(a) and (d). ( Id. ) However, in its reply, Plaintiff concedes that it is only appropriate to seek leave to file an amended complaint. (ECF No. 42 ("Reply") at p. 2, lines 10-12.)
Plaintiff seeks to file an amended complaint to set forth new allegations concerning facts it claims it was unaware of "prior to filing the Complaint, and only recently discovered... through discovery and investigation, " as well as a claim for increased damages. (ECF No. 34-1 ("Motion") at pp. 1-3.) Specifically, Plaintiff seeks to add facts relating to Defendant's "SEGUE BY BENCHMARK" program ("Segue Program"). ( Id. )
Defendant opposes Plaintiff's Motion. (ECF No. 41.) This matter was taken under submission on February 24, 2014. (ECF No. 43.) Thereafter, on April 28, 2014, Defendant filed a motion for summary judgment or, in the alternative, summary adjudication (ECF No. 48) and Plaintiff filed a motion for summary judgment (ECF No. 55). Briefing has not completed on the summary judgment motions. Oppositions are due no later than July 7, 2014. (ECF No. 60.) On May 22, 2014, this case and all pending motions were transferred to Judge Bashant. (ECF No. 59.)
II. LEGAL STANDARD
In support of its motion,  Plaintiff cites Rule 15(a) of the Federal Rules of Civil Procedure, which provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave" and leave shall be given freely when justice so requires. Fed.R.Civ.P. 15(a)(2).
However, Rule 15 does not provide the initial standard under which the Court considers Plaintiff's request to amend its complaint. After a scheduling order has been issued setting a deadline to amend the pleadings, as is the case here, and a party moves to amend the pleadings after the deadline, the motion amounts to one to amend the scheduling order and thus is properly brought under Rule 16(b) rather than Rule 15. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).
Under Rule 16, a scheduling order "may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). The decision to modify a scheduling order is within the broad discretion of the district court. Johnson, 975 F.2d at 607 (citation omitted). If good cause is shown, the court proceeds to consider the requirements of Rule 15(a). Id. at 608 (citing approvingly Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D. N.C. 1987), for its ...