United States District Court, C.D. California
ORDER DENYING MOTION FOR LEAVE TO AMEND AND
SUPPLEMENT [40, 56]
OTIS D. WRIGHT II UNITED STATES DISTRICT JUDGE.
February 1, 2016-six weeks after the amendment cut-off date
established in this Court’s Scheduling and Case
Management Order-Plaintiff John Corigliano filed a Motion for
Leave to File a First Amended Complaint to add new causes of
action and join a new defendant. (Mot. Leave to File First
Am. Compl. (“Mot.”), ECF No. 40.) Then, on May
20, 2016, Plaintiff filed a Motion to Supplement the First
Amended Complaint with new evidence. (Mot. Supp. First Am.
Compl. (“Mot. Supp.”), ECF No. 56.) Because
Plaintiff seeks to amend and supplement his pleading with
evidence already available to him, the Court DENIES his
Motion for Leave to File a First Amended Complaint
Federal Rules of Civil Procedure take a liberal position on
parties amending pleadings before trial. Fed.R.Civ.P. 15(a).
But once a district court issues a scheduling and case
management order, Rule 15(a)’s generous standard gives
way to the more stringent good-cause standard under Rule
16(b)(4). Coleman v. Quaker Oats Co., 232 F.3d 1271,
1294 (9th Cir. 2000).
applying the good-cause standard, a court “primarily
considers the diligence of the party seeking the amendment.
The district court may modify the pretrial schedule if it
cannot reasonably be met despite the diligence of the party
seeking the extension.” Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)
(internal quotation marks omitted). “The good cause
standard typically will not be met where the party seeking to
modify the scheduling order has been aware of the facts and
theories supporting amendment since the inception of the
action.” In re W. States Wholesale Nat. Gas
Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013),
aff’d on other grounds sub nom. Oneok, Inc. v.
Learjet, Inc., 135 S.Ct. 1591 (2015). Similarly, a party
does not show good cause where it does not conduct basic
investigation into the circumstances underlying its claims
until after the deadline to amend has passed. Hernandez
v. Select Portfolio Servicing, Inc., No. CV 15-1896 PA
(AJWX), 2016 WL 770869, at *3 (C.D. Cal. Feb. 24, 2016);
Bonneau v. SAP Am., Inc., No. C 03-5516 PJH, 2004 WL
2714406, at *1 (N.D. Cal. Nov. 29, 2004).
seeks to add new causes of action for intentional
misrepresentation, conversion, breach of oral contract,
violation of a statute, unjust enrichment, and unfair
business practices. He also seeks to add a new defendant,
Jennifer Polk-Elias. Plaintiff filed his Motion on February
1, 2016. (Mot.) However, the Scheduling and Case Management
order issued by this Court on February 26, 2016 back-dated
the amendment cut-off date to December 14, 2015. (ECF No.
45.) Because the Scheduling Order was not issued at the time
Plaintiff filed his Motion, the more generous Rule 15(a)
Rule 15(a), however, where the party seeking amendment knows
or should have known the facts upon which the amendment is
based but failed to include them in the original complaint,
the motion to amend may be denied. See Jordan v. County
of Los Angeles, 669 F.2d 1311, 1324 (9th Cir.1982).
Here, Plaintiff does not allege that he was unaware of the
facts and theories he seeks to raise in the amended
complaint. Rather, by Plaintiff’s own admission, he
seeks to amend his initial Complaint over two and a half
years later in order to “clarify” and purportedly
“save time and judicial resources” by obviating
the need to file a separate lawsuit. (Mot. 1.) Plaintiff
seeks to excuse his late filing by blaming the jurisdictional
issues that occupied the first year the action was filed.
(Id. 6.) However, even if the merits of the case
“have only been in play” since June 2015, as
Plaintiff contends, his lame attempt at obfuscation fails.
(Id.) Plaintiff waited nearly 8 months after June
2015 to file the present Motion. And, as far as the Court can
tell, Plaintiff knew or should have known the theories upon
which the amendment is based long before then. “Late
amendments to assert new theories are not reviewed favorably
when the facts and the theory have been known to the party
seeking amendment since the inception of the cause of
action.” Primerica Life Ins. Co. v. Rodriguez,
No. CV 11-7074 CAS PLAX, 2012 WL 893486, at *2 (C.D. Cal.
Mar. 14, 2012) (internal quotation marks and citation
omitted). Therefore, his request to add additional causes of
action is DENIED.
Plaintiff contends that he should be given leave to add
Jennifer Polk-Elias as a defendant because she allegedly
acted in concert with her husband, Defendant Fadi Elias.
(Mot. 7.) Plaintiff claims that upon discovering that he
wired money to a joint bank account that Polk-Elias shared
with her husband, he filed this request to add her as a
Defendant. (Mot. 10.) However, the single document he
provides as evidence on this point is actually a wire
transfer to Plaintiff, not from Plaintiff. (Corigliano Decl.
Ex. A, ECF No. 41). Furthermore, all the same arguments
against Plaintiff adding additional causes of action apply in
equal force to his request to add Polk-Elias. He has been
aware of her potential involvement for two and a half years
and has been in possession of this document since 2011, yet
failed to provide a reason for his previous failure to
investigate. Therefore, his request to add Polk-Elias as a
defendant is DENIED.
Motion for Leave to Supplement First Amended
seeks to supplement the cause of action in his proposed First
Amended Complaint based on an audit of his transactions and
payments to Defendants. (Mot. Supp. 2.) On motion and
reasonable notice, the court may, on just terms, permit a
party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the
date of the pleading to be supplemented. Fed.R.Civ.P. 15(d).
Matters occurring after a suit is instituted are properly
brought into the record by supplemental pleadings. Howard
v. Jennings, 141 F.2d 193, 1944 U.S. App. LEXIS 3627
(8th Cir. Mo. 1944); Hearst v. American Newspapers,
Inc., 51 F.Supp. 171, 1943 U.S. Dist. LEXIS 2359 (D.
Del. 1943). Rule 15(d) permitting plaintiff to supplement
complaint is for the purpose of enabling plaintiff to plead
facts which occurred after commencement of the suit. Fed.
Tel. & Radio Corp. v. Associated Tel. & Tel.
Co., 88 F.Supp. 375, 1949 U.S. Dist. LEXIS 1891, 84
U.S.P.Q. (BNA) 67 (D. Del. 1949). Here, Plaintiff contends
that he never received an invoice for repairs from
Defendants, as required by California law. (Mot. 2.) He
contends that he should be allowed leave to supplement the
claim for relief in his proposed First Amended Complaint
based on an audit he recently conducted. (Id.) He
contends that he could not have been aware of the additional
money owed to him prior to conducting an audit. (Corigliano
Decl. ¶ 11, ECF No. 61.) However, a basic investigation
into the circumstances surrounding Plaintiff’s claims
during the two and a half years prior to the cut-off for
amendments would have revealed this fact. Furthermore, the
audit does not present new facts that happened after the date
of the pleading to be supplemented, as required by Rule
15(d). Rather, it is a summary of facts already available to
Plaintiff when he submitted his Leave to File a First Amended
Complaint. Because Plaintiff failed to display good cause,
and because of Plaintiffs lack of candor by filing a
Supplemental Motion stating facts available to him when he
submitted his previous Motion only three months earlier, his
request is DENIED.
 In all cases not listed as exempt in
L.R. 16-12, and except in connection with discovery motions
(which are governed by L.R. 37-1 through 37-4) and
applications for temporary restraining orders or preliminary
injunctions, counsel contemplating the filing of any motion
shall first contact opposing counsel to discuss thoroughly,
preferably in person, the substance of the contemplated
motion and any potential resolution. L.R. 7-3. The present
case is not prior to exemption. L.R. 16-12. Yet prior to the
filing of this Motion for Leave to Supplement, Plaintiff
failed to meet and confer with Defendants’ counsel.