United States District Court, E.D. California
RICHARD S. KINDRED, Plaintiff,
CLIFF ALLENBY, et al., Defendants.
FINDINGS AND RECOMMENDATION TO DENY MOTION FOR
PERMISSION TO FILE ADDENDUM TO COMPLAINT, (ECF No.
Michael J. Seng UNITED STATES MAGISTRATE JUDGE
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.
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
Modification of Scheduling Order
instant motion was filed after the deadline to amend
pleadings. (See ECF No. 32.)
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
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).
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.
Leave to Amend or Supplement
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
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. “Absent prejudice, or ...