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Cochran v. Aguirre

United States District Court, E.D. California

March 13, 2017

BILLY COY COCHRAN, Plaintiff,
v.
E. AGUIRRE, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT [ECF, 81]

         Plaintiff Billy Coy Cochran is appearing pro se in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Plaintiff's motion for leave to amend the complaint, filed February 3, 2017. Defendant filed an opposition on February 23, 2017, and Plaintiff filed a reply on March 8, 2017.

         I.

         DISCUSSION

         Both Federal Rules of Civil Procedure 15 and 16 govern leave to amend in this instance. Rule 16(b) govern the issuance and modification of pretrial scheduling orders while Rule 15(a) govern amendment of pleadings. Both rules will be discussed below.

         A. Federal Rule of Civil Procedure 16

         Under Rule 16 of the Federal Rules of Civil Procedure, a discovery and scheduling order controls the course of litigation unless the Court subsequently alters the original order. Fed R. Civ. P. 16(d). Modification of a scheduling order requires a showing of good cause, Fed.R.Civ.P. 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a scheduling order must generally show that even with the exercise of due diligence, they cannot meet the requirement of that order. Id. The court may also consider the prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling order fails to show due diligence the inquiry should end and the court should not grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). A party may obtain relief from the court's deadline date for discovery by demonstrating good cause for allowing further discovery. Fed.R.Civ.P. 16(b)(4).

         “Good cause may be found to exist where the moving party shows that it diligently assisted the court with creating a workable scheduling order, that it is unable to comply with the scheduling order's deadlines due to matters that could not have reasonably bee foreseen at the time of the issuance of the scheduling order, and that it was diligent in seeking an amendment once it became apparent that the party could not comply with the scheduling order.” Kuschner Nationwide Credit, Inc., 256 F.R.D. 684, 687 (E.D. Cal. 2009).

         In order to demonstrate diligence, Plaintiff must show whether he collaborated with the court in setting a schedule; whether matters that were not, and could not have been, foreseeable at the time of the scheduling conference caused the need for amendment; and whether the movant was diligent in seeking amendment once the need to amend became apparent. Johnson, 975 F.2d at 608. “[C]arelessness not compatible with a finding of diligence and offers no reason for a grant of relief.” Id. at 609. The district court is given broad discretion under Rule 16. Id. at 607.

         Plaintiff's original complaint was filed on July 15, 2015. On August 14, 2015, the complaint was dismissed with leave to amend. Plaintiff filed an amended complaint on September 10, 2015. On November 25, 2015, the amended complaint was dismissed with leave to amend. Plaintiff filed a second amended complaint on January 4, 2016. On January 7, 2016, the Court found Plaintiff's second amended complaint stated a cognizable claim against Defendant E. Aguirre for failure to protect, due process violation relating to the deprivation of his personal property, equal protection violation, and state law negligence.

         On May 10, 2016, Defendant filed an answer to the complaint. On May 11, 2016, the Court issued the discovery and scheduling order, setting a November 11, 2016, deadline to amend the pleadings.

         In his motion to amend, Plaintiff requests to add unspecified defendants, listed as “and others.” (ECF No. 83, Mot. at 1-2.) Plaintiff submits a 92 page proposed third amended complaint, and lists fifty-six (56) defendants he seeks to add, and asserts new factual allegations, submits several additional exhibits, and a total of 245 claims.

         Plaintiff contends that he is diagnosed with mental disabilities, including major depressive disorder, posttraumatic stress disorder, anti-social personality disorder, polysubstance abuse, and gender identity disorder. He suffers from major depression at least once every two months for at least two weeks everyday all day, which causes severe difficulty and ability to think, concentrate, and make decisions. Plaintiff contends that he has exercised due diligence at all time in prosecuting this action.

         Plaintiff has not shown due diligence in seeking to amend the complaint. On April 25, 2016, Plaintiff filed a motion for extension of time to file a third amended complaint contending he was still in the process of exhausting his claims and would file once exhaustion was complete. (ECF No. 33.) On April 27, 2016, the Court denied Plaintiff's motion, without prejudice, stating “it is not apparent from the motion what factual contentions Plaintiff seeks to present and amend by way of filing a third amended complaint, ” and Plaintiff's motion was defective as he failed to include a proposed amended complaint. (ECF No. 35, Order at 2.) In addition, as previously stated, the Court's May 11, 2016, discovery and scheduling order provided a deadline to amend the pleading for November 11, 2016. (ECF No. 40.) Plaintiff has had several opportunities to amend his complaint, yet he failed to do ...


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