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Kindred v. Allenby

United States District Court, E.D. California

March 30, 2018

RICHARD S. KINDRED, Plaintiff,
v.
CLIFF ALLENBY, et al., Defendants.

          FINDINGS AND RECOMMENDATION TO DENY MOTION FOR PERMISSION TO FILE ADDENDUM TO COMPLAINT, (ECF No. 73)

          Michael J. Seng UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against Defendants Bigot and Bell on Plaintiff's First Amendment free exercise claim.

         Before the Court is Plaintiff's February 9, 2018 motion requesting permission to file an addendum to the second amended complaint. (ECF No. 73.) Defendants filed no response and the time for doing so has passed. The matter is submitted.

         I. Modification of Scheduling Order

         The instant motion was filed after the deadline to amend pleadings. (See ECF No. 32.)

         Districts courts must enter scheduling orders that “limit the time to join other parties, amend the pleadings, complete discovery, and file motions.” Fed.R.Civ.P. 16(b)(3)(A). Once entered by the court, a scheduling order “controls the course of the action unless the court modifies it.” Fed.R.Civ.P. 16(d). Scheduling orders are intended to alleviate case management problems. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir.1992). As such, a scheduling order is “not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.” Id. (quoting Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Maine 1985)). Good cause must be shown for modification of the scheduling order. Fed.R.Civ.P. 16(b)(4). The Ninth Circuit explained:

Rule 16(b)'s “good cause” standard 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. Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. Although the existence of a degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end.

Johnson, 975 F.2d at 609 (internal quotation marks and citations omitted). Therefore, parties must “diligently attempt to adhere to the schedule throughout the course of the litigation.” Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999). The party requesting modification of a scheduling order may be required to show:

(1) that she was diligent in assisting the Court in creating a workable Rule 16 order, (2) that her noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference, and (3) that she was diligent in seeking amendment of the Rule 16 order, once it become apparent that she could not comply with the order.

Id. at 608 (internal citations omitted).

         Here, Plaintiff provides no explanation for his untimely attempt to modify or supplement his pleading. The conduct complained of appears to have begun primarily in 2016 and may be ongoing. Plaintiff has not exhibited the requisite level of diligence that would permit him a modification of the scheduling order.

         II. Leave to Amend or Supplement

         A party seeking leave to amend pleadings must demonstrate that amendment is proper under Federal Rule of Civil Procedure 15. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Under Rule 15(a)(2), the court should freely give leave to amend a pleading “when justice so requires.” The Court should apply this policy “with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). “If the underlying facts or circumstances relied upon by a [party] may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Forman v. Davis, 371 U.S. 178, 182 (1962).

         However, a district court may deny leave to amend where there is “'any apparent or declared reason' for doing so, including undue delay, undue prejudice to the opposing party or futility of the amendment.” Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 772 (9th Cir. 1991) (quoting Forman, 371 U.S. at 182). These factors are not to be given equal weight. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Prejudice to the opposing party must be given the greatest weight. Id. ÔÇťAbsent prejudice, or ...


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