The Garmon Corp. v. HealthyPets, Inc.

          ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT [110]; AND DENYING PLAINTIFF'S MOTION TO AMEND THE SCHEDULING ORDER [123]

          OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court is Plaintiff The Garmon Corporation's (“Garmon”) Motion for Leave to File a First Amended Complaint. (Mot. to Amend Compl. (“Mot.”), ECF No. 110.) Garmon seeks to amend its Complaint to re-allege its voluntarily dismissed copyright infringement claim. However, because Garmon does not meet the requisite “good cause” standard for modifying the scheduling order to allow amendment at this stage of the litigation, the Court DENIES Garmon's Motion.^[1] (ECF No. 110.)

         II. FACTUAL BACKGROUND

         On April 19, 2018, Garmon filed a Complaint that included eight causes of action against Defendants HealthyPets, Inc., and Mandeep Ghumann (collectively, “HealthyPets”). (Compl., ECF No. 1.) Three of Garmon's causes of action are federal claims: (1) Trademark Infringement, (2) Unfair Competition, and (3) Copyright Infringement; the remainder asserted state law claims. (See Compl.) The Court set the deadline to hear motions to amend pleadings or add parties on October 29, 2018. (Scheduling Order 24, ECF No. 67.) Garmon did not seek to amend its Complaint on or before that deadline. On October 10, 2018, HealthyPets moved for judgment on the pleadings as to certain of Garmon's claims, setting a hearing date on November 19, 2018. (Mot. for J., ECF No. 89.)

         On April 23, 2019, Garmon moved to dismiss its copyright infringement claim. (Mot. to Voluntarily Dismiss, ECF No. 101.) Garmon asserts that it voluntarily dismissed its copyright infringement claim pursuant to the decision in Fourth Estate because it had not yet registered two of its copyright works.^[2] (Mot. to Voluntarily Dismiss.) The Court granted Garmon's voluntary dismissal without prejudice. (Order Granting Dismissal, ECF No. 102.)

         On May 16, 2019, the Court granted in part HealthyPets, Inc.'s motion for judgment on the pleadings with regards to Garmon's trademark infringement and unfair competition claims. (Order Granting J. on the Pleadings (“J. Order”) 8, ECF No. 103.) As no federal claims remained, the Court found that it lacked federal subject matter jurisdiction and declined to exercise supplemental jurisdiction over Garmon's state claims. (J. Order 8-9.)

         Seven months after the deadline to hear motions to amend, almost three months after the Supreme Court's decision in Fourth Estate, and long after the record indicates Garmon's copyright works were registered, ^[3] Garmon moved for leave to amend its Complaint to add claims for copyright infringement. (Mot.)

         III. LEGAL STANDARD

         When a party moves to amend a pleading beyond the deadline set in the scheduling order, it must first show “good cause” for relief from the deadline. Fed.R.Civ.P. 16(b)(4); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). “Rule 16(b)'s ‘good cause' standard primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609. “[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. . . . If [the moving] party was not diligent, the inquiry should end.” Id. (citations omitted).

         Only where Federal Rule of Civil Procedure (“Rule”) 16's good cause standard is met must a court consider whether amendment is proper under Rule 15. See Id. at 608 (citing Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D. N.C. 1987)). Under Rule 15, “[f]our factors are commonly used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment.” DCD Programs, Ltd v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). While the Rule 15 factors should be analyzed with “extreme liberality” toward favoring amendment, United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981), the moving party cannot “appeal to the liberal amendment procedures afforded by Rule 15” unless it first “satisf[ies] the more stringent ‘good cause' showing required under Rule 16” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 952 (9th Cir. 2006).

         IV. DISCUSSION

         Garmon argues in its Motion that Rule 15 governs their proposed amendment. Not so. This case is governed by a scheduling order, and the date to amend pleadings has long passed. See Johnson, 975 F.2d at 607-08; (Scheduling Order 24.) As such, Rule 16 governs this case, requiring a demonstration of good cause. Fed.R.Civ.P. 16(b)(4). The Court finds that Garmon fails to demonstrate good cause for its delay in seeking leave to amend its complaint under Rule 16.

         Garmon fails to address Rule 16's good cause standard or support its own diligence under Johnson, and has not adequately shown that it has been diligent with respect to this proposed amendment. See Johnson, 975 F.2d at 609. Garmon asserts that two of its copyright works were not registered until April 29, 2019, but provides no evidence to support this assertion. (Mot. 6.) In contrast, the record suggests that Garmon knew by January 22, 2019, that the works had been registered. (Opp'n 6; Decl. of Jeffrey T. Lindgren Ex. A (“HealthyPets's Second Set of Interrog.”) 5, ECF No. 117-2.) Such a delay of months by Garmon smells of gamesmanship and, at best, reflects a lack of diligence. Stiletto Television, Inc. v. Hastings, Clayton & Tucker, Inc., No. 18-cv-3911-DSF (PLAx), 2019 WL 2619642, at *2 (C.D. Cal. Apr. 15, 2019) (finding plaintiff was not diligent ...