United States District Court, S.D. California
CHRISTOPHER MELINGONIS, individually and on behalf of all others similarly situated, Plaintiff,
RAPID CAPITAL FUNDING, L.L.C.; and, MERCHANT WORTHY, INC., Defendants.
WILLIAM Q. HAYES, United States District Judge
matters before the Court are the motion to dismiss the first
amended complaint filed by Defendant Merchant Worthy, Inc.
(“Merchant Worthy”) (ECF No. 26) and the motion
for leave to amend the complaint filed by Plaintiff
Christopher Melingonis (ECF No. 27).
February 24, 2016, Plaintiff initiated this action by filing
a complaint against Defendant Rapid Capital Funding L.L.C.
(“Rapid Capital”) alleging violations of the
Telephone Consumer Protection Act, 47 U.S.C. § 227, et
seq. (ECF No. 1). On April 15, 2016, Rapid Capital filed an
answer. (ECF No. 4).
August 16, 2016, the Magistrate Judge issued a Scheduling
Order in this matter requiring that any motion to join other
parties, to amend the pleadings or to file additional
pleadings be filed on or before September 12, 2016. (ECF No.
October 18, 2016, Plaintiff filed a first amended complaint
against Defendant Rapid Capital and the newly-added Defendant
Merchant Worthy. (ECF No. 18).
December 30, 2016, Defendant Merchant Worthy filed a motion
to dismiss the first amended complaint. (ECF No. 26).
Plaintiff did not file a response in opposition to this
motion to dismiss. On January 30, 2017, Defendant Merchant
Worthy filed a “Notice of No Opposition Filed in
Response to Defendant Merchant Worthy Inc.'s Motion and
Motion to Dismiss First Amended Class Action
Complaint.” (ECF No. 32).
January 9, 2017, Plaintiff filed a motion for leave to file
an amended complaint, in which Plaintiff states that he
withdraws the first amended complaint. (ECF No. 27). On
January 23, 2017, Defendant Merchant Worthy filed a response
in opposition to the motion seeking leave to file an amended
complaint. (ECF No. 29). On January 30, 2017, Plaintiff filed
a reply. (ECF No. 31).
Plaintiff's Motion for Leave to File an Amended
states that he “withdraws the First Amended Complaint
which was filed on October 19, 2016” and requests leave
to amend the original complaint to add Merchant Worthy as a
defendant. (ECF No. 27-1 at 2). Plaintiff states that he has
no objection to Defendant Merchant Worthy's alternative
request to set a new Case Management Conference to restart
the deadlines in this action. Id. at 3. Plaintiff
further requests that Defendant Merchant Worthy's motion
to dismiss be denied as moot. Id. at 4. Plaintiff
contends that good cause exists to amend his complaint
because he could not have included Defendant Merchant Worthy
in the original complaint. Plaintiff contends that he was not
aware of the existence of Defendant Merchant Worthy or its
relation to the current action until September 30, 2016
following the receipt of written discovery. Id. at
3; ECF No. 31 at 2. Plaintiff contends that during discovery,
Defendant Rapid Capital represented that at least one of the
phone calls received by Plaintiff was placed by Defendant
Merchant Worthy. (ECF No. 27-1 at 3).
Merchant Worthy contends that Plaintiff should not be granted
leave to amend because Plaintiff failed to obtain leave of
Court to file the first amended complaint as required by
Federal Rule of Civil Procedure 15(a). (ECF No. 29 at 5).
Defendant Merchant Worthy contends that it will be prejudiced
if it is added as a defendant at this stage of proceedings
because, absent intervention by the Court, it will have
“no opportunity to participate in any class discovery
or prepare for a class certification motion, and will have no
meaningful opportunity to participate in fact discovery in
this action.” Id. at 6. Defendant Merchant
Worthy contends that Plaintiff failed to obtain leave of
Court to add Defendant Merchant Worthy as a defendant as
required by Federal Rule of Civil Procedure 21. Id.
Defendant Merchant Worthy contends that Plaintiff failed to
seek leave of Court to modify the Scheduling Order. Defendant
Merchant Worthy contends that Plaintiff has made no showing
of good cause to modify the Scheduling Order as required by
Federal Rule of Civil Procedure 16(b)(4). Id. at 8.
motion for leave to amend filed after the time period
specified in a district court's scheduling order is
governed by the “good cause” standard of Federal
Rule of Civil Procedure 16(b). Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).
Federal Rule of Civil Procedure 16 provides that a district
court must issue a scheduling order that limits “the
time to join other parties, amend the pleadings, complete
discovery, and file motions.” Fed.R.Civ.P. 16(b).
Federal Rule of Civil Procedure 16(b) also provides that
“[a] schedule may be modified only for good cause and
with the judge's consent.” Id. “Rule
16(b)'s ‘good cause' standard primarily
considers the diligence of the party seeking 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, 975 F.2d
at 609 (citing Fed.R.Civ.P. 16 advisory committee's notes
(1983 amendment)). If the court finds that a plaintiff has
shown good cause pursuant to Federal Rule of Civil Procedure
16(b), the court must consider whether leave to amend is
proper under Federal Rule of Civil Procedure 15. Id.
Rule of Civil Procedure 15(a) provides that after the time
for amendment “as a matter of course” has passed,
“a party may amend its pleading only with the opposing
party's written consent or the court's leave.”
Id. Federal Rule of Civil Procedure 15 mandates that
leave to amend “be freely given when justice so
requires.” Id. “This policy is to be
applied with extreme liberality.” Eminence Capital,
LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)
(quotation omitted). In Foman v. Davis, 371 U.S. ...