United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO
AMEND THE COMPLAINT [ECF, 81]
Billy Coy Cochran is appearing pro se in this civil rights
action pursuant to 42 U.S.C. § 1983.
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.
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
Federal Rule of Civil Procedure 16
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).
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.
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.
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
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
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.
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.
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 ...