United States District Court, S.D. California
JUAN ROMERO, FRANK TISCARENO, and KENNETH ELLIOT, on behalf of themselves and all others similarly situated, Plaintiffs,
SECURUS TECHNOLOGIES, INC., Defendant.
ORDER DENYING MOTION TO MODIFY PLAINTIFF'S
DEADLINE TO AMEND PLEADINGS [ECF No. 69]
Mitchell D. Dembin United States Magistrate Judge
the Court is a Joint Motion for Determination of Application
to Modify Plaintiffs' Deadline to Amend Pleadings. (ECF
No. 69). Specifically, Plaintiffs seek to extend the filing
deadline for a motion to amend the complaint to substitute in
or add another named plaintiff whose claims arise out of the
same set of general facts that are at issue in the current
operative complaint. (Id. at 8). Defendant opposes
Plaintiffs' request for failure to demonstrate good cause
or excusable neglect in “seeking to modify the
Court's scheduling order four months after the passing of
the deadline to amend the pleadings.” (Id. at
9). For the reasons stated herein, Plaintiffs' request to
extend the deadline to amend the pleadings is
Complaint was filed on May 27, 2016. (ECF No. 1). On July 26,
2016 Plaintiffs filed their First Amended Complaint. (ECF No.
8). Following a ruling on Defendant's motion to dismiss
and motion to strike, Plaintiffs filed a Second Amended
Complaint on November 7, 2016. (ECF No. 22). Following
Defendant's motion to dismiss and ruling thereon,
Plaintiffs filed a Third Amended Complaint on February 8,
2017. (ECF No. 30). Defendant filed a motion to dismiss
Plaintiffs' Third Amended Complaint. (ECF No. 31). The
District Court granted in part and denied in part
Defendant's motion and stated “the court's
order is without leave to amend” making the Third
Amended Complaint the operative complaint for the case. (ECF
No. 37). An ENE/CMC was held May 26, 2017 and a Case
Management Order was issued May 30, 2017. (ECF Nos. 45, 46).
The Order provided that the deadline to “join other
parties, to amend the pleadings, or to file additional
pleadings shall be filed on or before June 26, 2017.”
(ECF No. 46 at 1).
16(a)(4), Fed. R. Civ. P., provides that a schedule may be
modified “only for good cause.” “Rule
16(b)'s ‘good cause' standard primarily
considers the diligence of the party seeking the
amendment.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992); Sharp v.
Covenant Care LLC, 288 F.R.D. 465, 467 (S.D. Cal. 2012).
Rule 1, Fed. R. Civ. P., provides that the Federal Rules of
Civil Procedure “should be construed, administered, and
employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action and
proceeding.” As one court has stated:
Pleadings cannot be a continuously moving target for obvious
reasons. The amendment deadline serves to frame the issues at
a fixed point in time so that the parties have an adequate
opportunity to prepare their respective positions moving
forward. Even so, the deadline will not entirely foreclose
amendments, so long as the standard of good cause is met to
warrant the amendment.
Stephens v. Idaho Dept. of Parks and Recreation,
2011 WL 6150641 *3, No. 1:10-cv-00267-REB (D. Idaho December
to Plaintiffs, Defendant was served with a subpoena duces
tecum on August 1, 2017. In response, Defendant produced 30
pages of stored emails with seven electronically stored call
detail spreadsheets. Plaintiff contends that a review of the
call reports reveal that detainee John Wiederkehr's phone
conversation with his attorney was improperly recorded. (ECF
No. 69 at 2-3). Plaintiff asserts “[a]s a result . . .
Mr. Wiederkehr has agreed to serve as an additional or
substitute lead plaintiff in the case.” (Id.
at 3). Plaintiffs maintain that “Mr. Wiederkehr was
unaware of his claims against Defendant until after the
deadline to amend the pleadings.” (Id.)
Plaintiffs' filed their motion to certify the class and
to appoint class counsel on October 10, 2017. (ECF No. 62).
And, Plaintiffs contend they “have submitted more than
sufficient admissible evidence . . . to make a prima facie
case for class certification.” (ECF No. 69-9).
pertinent inquiry is whether pursuant to Rule 16(b),
Plaintiffs have shown “good cause” to modify the
court's case schedule. “[T]he focus of the inquiry
is upon the moving party's reasons for seeking
modification.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992). In
Plaintiff's own words “[a]t this time Plaintiff
propose an amendment to the deadline which would allow them
to merely add or substitute a new plaintiff with claims which
fall within the narrower class set forth in Plaintiffs'
Motion for Class Certification. . . .” (Id. at
8). Plaintiffs' have not explained the necessity of
adding an additional plaintiff at this time nor the prejudice
to be suffered if this motion is denied.
argues that “[t]here are already three named
plaintiffs, and while Plaintiffs state that they would like
to amend their pleadings to add Mr. Werhderkehr, they do not
describe any importance of adding an additional
plaintiff.” (ECF No. 69 at 11). The Court agrees with
Defendant that if the class is certified, Mr. Wiederkehr can
opt in as a member of the class or opt out and file his own
action against Defendants.
Court finds that Plaintiffs have failed to show the requisite
diligence and good ...