United States District Court, C.D. California
ORDER DENYING PLAINTIFFS' MOTIONS TO AMEND 
D. WRIGHT, II UNITED STATES DISTRICT JUDGE.
INTRODUCTION AND BACKGROUND
Lawrence Davis filed his Complaint in this action on October
4, 2017. (Compl., ECF No. 1.) He asserted violations of the
American with Disabilities Act (“ADA”) and the
Unruh Civil Rights Act (“Unruh”) against
Defendants 630 West Broadway, LLC, and Royal Palms Post
Acute, LLC (collectively, “Defendants”). On June
29, 2018, the Court issued its Scheduling and Case Management
Order (“Scheduling Order”) in the case, setting
October 1, 2018 as the deadline to hear motions to amend the
pleadings. (Scheduling Order 24, ECF No. 22.)
Jessie Enriquez filed his Complaint in Enriquez v. 630 West
Broadway, LLC, et al., No. 18-cv-00433 (C.D. Cal. filed Jan.
17, 2018) (“Enriquez Action”), on January 17,
2018. Compl., Enriquez Action, ECF No. 1. He also asserted
ADA and Unruh violations against Defendants. On May 25, 2018,
the Court issued its Scheduling Order in that action, setting
July 6, 2018, as the deadline to hear motions to amend the
pleadings. Scheduling Order, Enriquez Action, ECF No. 22.
November 1, 2018, Plaintiffs Davis and Enriquez
(collectively, “Plaintiffs”) had their expert
conduct a site inspection of Defendants' location,
leading to a December 6, 2018 expert report relevant to both
actions. In January 14, 2019, upon motion of the parties, the
Court consolidated the Enriquez Action with this matter and
ordered that the deadlines in this action govern the
consolidated matters. (Order Granting Joint Mot. to
Consolidate Cases 2, ECF No. 26.) On February 26, 2019,
Plaintiffs each moved for leave to amend their complaints to
allege additional architectural barriers that their expert
identified at the site inspection. (Mots. For Leave to File
First Am. Compl. (“Motions”), ECF Nos. 29, 30.)
The Motions are substantially identical so the Court
addresses them together. For the reasons discussed below, the
Court DENIES Plaintiffs' Motions.
16(b) scheduling order “is not a frivolous piece of
paper, idly entered, which can be cavalierly disregarded by
counsel without peril.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992). “To permit a
party to disregard a Rule 16 order by an appeal to the
standards of Rule 15 would ‘undermine the court's
ability to control its docket, disrupt the agreed-upon course
of the litigation, and reward the indolent and the
cavalier.'” Eckert Cold Storage, Inc. v. Behl, 943
F.Supp. 1230, 1233 (E.D. Cal. 1996) (quoting Johnson, 975
F.2d at 610-11). Accordingly, “after the pretrial
scheduling order's deadline for amending the pleadings
has expired, ” a party seeking to amend “must
satisfy the ‘good cause' standard of Federal Rule
of Civil Procedure 16(b)(4)” (“Rule 16”).
Neidermeyer v. Caldwell, 718 Fed.Appx. 485, 488 (9th Cir.
2017) (quoting In re W. States Wholesale Nat. Gas Antitrust
Litig. (“In re W. States”), 715 F.3d 716, 737
(9th Cir. 2013)).
focus of the good cause inquiry is the diligence, or lack
thereof, of the party seeking modification and their reasons
for seeking amendment. Johnson, 975 F.2d at 609; see also
Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir.
2002) (affirming denial of motion to modify schedule where
the plaintiff failed to “demonstrate diligence in
complying with the dates set by the district court”).
“If [the moving] party was not diligent, the inquiry
should end.” Johnson, 975 F.2d at 609. Prejudice to the
opposing party may also provide additional reasons to deny a
motion. Id. Only where Rule 16's good cause
standard is met must a court consider whether amendment is
proper under Federal Rule of Civil Procedure 15 (“Rule
15”). See Id. at 608.
Court finds that Plaintiffs have not shown good cause to
modify the Scheduling Order to permit the late motions to
seek leave to amend their complaints to allege additional
architectural barriers their expert identified at the
November 1, 2018 site inspection because “a plaintiff
must identify the barriers that constitute the grounds for a
claim of discrimination under the ADA in the complaint
itself.” Oliver v. Ralphs Grocery Co., 654 F.3d 903,
908-09 (9th Cir. 2011). However, the Scheduling Order in this
matter set October 1, 2018, as the last day to hear motions
to amend pleadings or add parties. That means that, to be
timely, Plaintiffs must have moved to amend their complaints
no later than September 3, 2018. See C.D. Cal. L.R. 6-1. Yet
Plaintiffs waited until the end of February 2019 to move to
amend, nearly five months beyond the deadline. Even allowing
that Plaintiffs did not have the benefit of the expert's
site inspection until November 1, 2018, or the expert's
report until December 6, 2018, Plaintiffs delayed nearly four
months after the inspection and three months after the report
to bring their Motions. This does not demonstrate diligence.
See Zivkovic, 302 F.3d at 1087 (“If the party seeking
the modification ‘was not diligent, the inquiry should
end' and the motion to modify should not be
granted.”) Plaintiffs contend they demonstrated
diligence in seeking amendment because they actively pursued
the expert site inspection and, after the site inspection,
Plaintiffs had to address consolidation of the actions before
they could turn to seeking leave to amend. (Mots. 6-7.) This
argument goes to Plaintiffs' choice of priority in
litigating this matter and does not support diligence or good
cause to allow such a late amendment.
Defendants would suffer prejudice if Plaintiffs were allowed
to amend their complaints at this late date. Trial is less
than two months away, discovery is closed, and the
dispositive motion deadline has passed. Defendants have
litigated based on Plaintiffs' operative complaints since
October 2017 in this matter and since January 2018 in the
Enriquez Action. To move the goal-post now, after years of
investigation and defense, and after discovery and motion
practice is closed, would cause Defendants undue prejudice.
See Oliver, 654 F.3d at 909 (citing Ascon Props., Inc. v.
Mobil Oil Co., 866 F.2d 1149, 1161 (9th Cir. 1989) (affirming
denial of leave to amend because allowing amendment “at
this late date” would prejudice the defendant, who had
“already incurred substantial litigation costs”
in investigating and defending the litigation)).
Plaintiffs have not established good cause to modify the
Scheduling Order, the Court does not reach the question of