United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE.
of this action, Plaintiffs Advanced Building &
Fabrication, Inc., and Robert Honan (collectively
“Plaintiffs”) seek to recover from Defendants
California Highway Patrol (“CHP”), CHP Officer
John Wilson, and Board of Equalization employee Curtis Ayers
(collectively “Defendants”) for injuries arising
out of the search of Plaintiffs' premises and Honan's
arrest. In July 2017, the Court denied
Defendants' Motions for Summary Judgment, among other
motions, after which Defendants appealed. ECF Nos. 140-141,
148. The final mandate for Defendants' various appeals
was handed down in July of this year. In the meantime,
Plaintiffs' counsel filed a notice of withdrawal of
counsel indicating that new counsel had been substituted in
at the appellate level and would now be representing
Plaintiffs. ECF No. 153. Presently before the Court are
Plaintiffs' Motion for an Order to Show Cause as to why
Plaintiffs' former counsel (hereafter “Former
Counsel”) should not be sanctioned (ECF No. 165) for
withdrawing in this Court without Plaintiffs' approval
and Plaintiffs' Motion to Amend the Complaint and to
Reopen Discovery (ECF No. 168). For the following reasons,
both Motions are DENIED.
Request for Sanctions
of Plaintiffs' first Motion, they seek an order: (1)
imposing monetary sanctions against Former Counsel for filing
a purportedly premature notice of substitution of counsel;
(2) reinstating Former Counsel to represent Plaintiffs here;
and (3) requiring Former Counsel to turn over to Plaintiffs
all relevant client files. The gist of Plaintiffs'
argument is that they intended to substitute new counsel in
for appellate purposes only and that their Former Counsel was
supposed to continue representing Plaintiffs for trial
purposes on remand.
on the record in its entirety, though, it appears that
Plaintiffs intended to relieve Former Counsel of their
obligations with regard to this case as a whole. For example,
Plaintiffs requested the relinquishment of the entire trial
file. If Plaintiffs intended to retain Former Counsel for any
purpose, they would have needed to retain some files.
Moreover, the substitution filed both before the Ninth
Circuit and here, indicated that the substitution was
intended for the “above-captioned” case, so it
was reasonable for Former Counsel to believe he had been
permanently discharged by his client.
given the fractured relationship between the parties in this
case, and Plaintiffs' agreement with appellate counsel to
represent them here until substitute counsel may be obtained,
reinstating Former Counsel makes no practical sense. Nor did
Former Counsel's withdrawal violate the local rules since
Plaintiffs were not left in pro per by the withdrawal.
the Court is not convinced that counsel have properly
attempted to meet and confer with regard to the transfer of
any remaining files in the possession of Former Counsel.
Accordingly, there is no need for a court order directing the
production of documents when Former Counsel has already
indicated a willingness to provide those files to
Plaintiffs' new counsel. There is no dispute to resolve
with respect to the files.
having considered the entire record, including the statements
of both parties, the Court declines to impose sanctions. The
motion for an order to show cause is thus DENIED. If the
parties are unable to informally resolve the transfer of any
remaining files, any such dispute may be raised before the
assigned magistrate judge in the first instance.
Motion to Amend
a motion to amend is subject to Rule 15(a) of the Federal
Rules of Civil Procedure,  which provides that “[t]he court
should freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a)(2). However,
“[o]nce the district court ha[s] filed a pretrial
scheduling order pursuant to Federal Rule of Civil Procedure
16[, ] which establishe[s] a timetable for amending
pleadings[, ] that rule's standards control.”
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
607-08 (9th Cir. 1992); see In re W. States Wholesale
Natural Gas Antitrust Litig., 715 F.3d 716, 737 (9th
16(b) requires a party seeking leave to amend to demonstrate
“good cause.” Fed.R.Civ.P. 16(b). “Rule
16(b)'s ‘good cause' standard primarily
considers the diligence of the party seeking
amendment.” Johnson, 975 F.2d at 609.
“If that party was not diligent, the inquiry should
end.” Id. Although “the focus of the
inquiry is upon the moving party's reasons for seeking
modification, ” a court may make its determination by
noting the prejudice to the other parties. Id.
cause is found, the court must then evaluate the request to
amend in light of Rule 15(a)'s liberal standard.
Id. at 608. Leave to amend should be granted unless
amendment: (1) would cause prejudice to the opposing party,
(2) is sought in bad faith, (3) creates undue delay, (4) or
is futile. Chudacoff v. Univ. Med. Ctr. of S. Nev.,
649 F.3d 1143, 1153 (9th Cir. 2011) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)). “Because Rule
16(b)'s ‘good cause' inquiry essentially
incorporates the first three factors, if a court finds that
good cause exists, it should then deny a motion for leave to
amend only if such amendment would be futile.”
Baisa v. Indymac Fed. Reserve, No.
2:09-CV-01464-WBS-JFM, 2010 WL 2348736, at *1 (E.D. Cal. June
only has a scheduling order issued here, such that Plaintiffs
must confront Rule 16(b)'s good cause threshold, but
discovery is already closed and dispositive motion deadlines
have passed. In light of the posture of this case, Plaintiffs
have not remotely demonstrated that they were diligent in
seeking the requested amendments. This action was initiated
in 2013 based on events that occurred in 2012, but Plaintiffs
now contend amendment is necessary to add a host of new
Defendants that have been known to the parties for years.
Regardless of whether Plaintiffs believe Former Counsel
should have joined all of these additional individuals, they
have had years to attempt ...