United States District Court, E.D. California
WILLIAM L. MAGERS, Plaintiff,
SUZANNE M. JONES, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR LEAVE TO FILE A FIRST AMENDED ANSWER AND COUNTERCLAIMS
GARLAND E. BURRELL, Jr., District Judge.
Defendant filed a motion seeking leave to file eight counterclaims sixty-eight days after expiration of the pleading leave period prescribed in the scheduling order filed October 17, 2014. The amended pleading deadline portion of the scheduling order states:
Defendant states in the [Joint Status Report]... that she "anticipates filing a cross complaint on or before October 31, 2014." (JSR 2:3-4.)
Defendant has until October 31, 2014, to file the referenced pleading.
No further service, joinder of parties, or amendments to the pleadings is permitted, except with leave of Court for good cause shown.
(Status (Pretrial Scheduling) ("Scheduling Order") Order 3:3-9, ECF No. 12.)
Defendant's motion to amend is in essence a de facto motion to amend all dates prescribed in the scheduling order that would have to be amended if Defendant's amended pleading motion is granted: specifically, the April 30, 2015 discovery completion date, the June 15, 2015 last hearing date for motions, and the August 10, 2015 final pretrial conference. (Scheduling Order 3:11; 3:23; 4:2-3.)
Defendant argues her motion should be granted for the following reasons:
At the time of the Joint Scheduling Report and this Court's order, Defendant and her counsel did not have all of the facts sufficient to plead the counterclaims contained in the [proposed amended pleading]. However, Defendant and her counsel were working diligently to obtain the necessary information and documents, including police reports and court documents from prior proceedings. Defendant and her counsel did not anticipate the length of time it would take to receive the documents and information requested from other institutions, despite their best efforts to gather the information before the deadline. Defendant recently obtained the facts to plead her counterclaims with sufficient specificity to show that Defendant is entitled to relief.
(Mot. 1:26-2:6, ECF No. 13) (citations omitted.)
Plaintiff opposes the motion arguing:
Defendant offers no compelling reason why the proposed new pleading could not have been presented earlier. Defendant clearly knew the alleged facts on which the counterclaims are based at the time of filing the original answer, but did not assert them before the [s]cheduling [o]rder's deadline. Motions for leave to add new claims are not reviewed favorably when the facts supporting the claims have been known to the party since before the pleading deadline.... The counterclaims are unquestionably based on conduct and events that allegedly occurred from approximately July 2012 to February 2013. Presumably these are the same counterclaims that Defendant "anticipated" filing in the Joint Status Report dated October 10, 2014. Yet, in her motion, Defendant points to no specific facts that she could not have alleged before the pleading deadline. She fails to explain what necessary information was contained in "police reports and court documents" that she previously lacked. Presumably the information contained in the police reports was obtained directly from Defendant, given that she herself reported the alleged thefts on December 20, 2012, December 24, 2012 and February 8, 2013. It is questionable whether obtaining "police reports and court documents" was indeed necessary for Defendant "to plead her counterclaims with sufficient specificity, " but even if that were the case, the Rule 16(b)(4) inquiry focuses on diligence. Defendant reasonably should have foreseen or anticipated the issue at the time of the Rule 16 scheduling conference. Defendant's failure to raise the issue or seek modification of the Scheduling Order until December 15, 2014, nearly two months after the Scheduling Order issued, reinforces the conclusion that Defendant has not been diligent.
(Opp'n to Mot. 1:24-27; 3:27-28; 4:21-5:8, ECF No. 14.)
Defendant rejoins: "she was not aware of all the facts to support her counterclaims at the time of filing her original answer and.... [that the information she obtained] include[s] the details of the" events forming the basis of her counterclaims including "the dates of the alleged events [and] the estimated amounts of... stolen property, " which are "necessary [for her counterclaims] to survive a Rule 12(b)(6) motion to dismiss, " given that she "did not ...