United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING
PLAINTIFF'S MOTION TO AMEND THE COMPLAINT BE DENIED [ECF
Michael Benanti is appearing pro se and in forma pauperis in
this civil rights action pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
This matter was referred to a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On December 2, 2019, Plaintiff filed a motion to amend the
complaint, along with a proposed third amended complaint.
(ECF Nos. 82, 83.) Defendants filed an opposition on December
20, 2019. (ECF No. 86.) Plaintiff did not file a reply and
the time to do so has expired. Local Rule 230(1).
seeks to file a third amended complaint under Rule 15,
claiming the amendment “clarifies the issues, narrows
the time frames and adds other defendants.” (ECF No. 82
at p. 2.)
Federal Rules of Civil Procedure 15 and 16 govern leave to
amend in this instance. Rule 16(b) govern the issuance and
modification of pretrial scheduling orders while Rule 15(a)
govern amendment of pleadings. Both rules will be discussed
Federal Rule of Civil Procedure 16
Rule 16 of the Federal Rules of Civil Procedure, a discovery
and scheduling order controls the course of litigation unless
the Court subsequently alters the original order. Fed R. Civ.
P. 16(d). Modification of a scheduling order requires a
showing of good cause, Fed.R.Civ.P. 16(b), and good cause
requires a showing of due diligence, Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). To
establish good cause, the party seeking the modification of a
scheduling order must generally show that even with the
exercise of due diligence, they cannot meet the requirement
of that order. Id. The court may also consider the
prejudice to the party opposing the modification.
Id. If the party seeking to amend the scheduling
order fails to show due diligence the inquiry should end and
the Court should not grant the motion to modify. Zivkovic
v. Southern California Edison, Co., 302 F.3d 1080, 1087
(9th Cir. 2002). A party may obtain relief from the
court's deadline date for discovery by demonstrating good
cause for allowing further discovery. Fed.R.Civ.P. 16(b)(4).
cause may be found to exist where the moving party shows that
it diligently assisted the court with creating a workable
scheduling order, that it is unable to comply with the
scheduling order's deadlines due to matters that could
not have reasonably bee foreseen at the time of the issuance
of the scheduling order, and that it was diligent in seeking
an amendment once it became apparent that the party could not
comply with the scheduling order.” Kuschner
Nationwide Credit, Inc., 256 F.R.D. 684, 687 (E.D. Cal.
order to demonstrate diligence, Plaintiff must show whether
he collaborated with the court in setting a schedule; whether
matters that were not, and could not have been, foreseeable
at the time of the scheduling conference caused the need for
amendment; and whether the movant was diligent in seeking
amendment once the need to amend became apparent.
Johnson, 975 F.2d at 608. “[C]arelessness not
compatible with a finding of diligence and offers no reason
for a grant of relief.” Id. at 609. The
district court is given broad discretion under Rule 16.
Id. at 607.
did not act diligently. According to Plaintiff, the relevant
facts in the complaint took place “from October 6, 2017
to October 27, 2017.” (ECF No. 81.) This case was filed
two years ago on November 6, 2017. (ECF No. 1.) On December
19, 2017, the Court screened the complaint and granted
Plaintiff leave to file an amended complaint. (ECF No. 13.)
Plaintiff filed an amended complaint on January 19, 2018.
(ECF No. 14.) The Court thereafter ordered serve on January
24, 2018. (ECF No. 15.) After filing an exhaustion-related
motion for summary judgment which was denied, Defendants
answered the complaint on October 11, 2018. (ECF Nos. 23, 36,
38, 39, 30.)
October 16, 2018, the Court issued the discovery and
scheduling order, and the deadline to amend the pleadings
expired on April 16, 2019. (ECF No. 41.) Therefore,
Plaintiff's ability to amend the complaint is governed by
Rule 16(b). Plaintiff previously amended his complaint on
January 19, 2018. (ECF No. 14.) Plaintiff also filed a motion
to amend the complaint on April 15, 2019, which was denied.
(ECF Nos. 51, 66.) Plaintiff did not raise the issue of
amendment again until it was raised as part of his opposition
to Defendants' motion for summary judgment. (ECF Nos. 83,
84.) On December 17, 2019, the Court issued Findings and
Recommendations to grant Defendants' motion for summary
judgment. (ECF No. 85.)
did not act diligently in seeking to amend and file a third
amended complaint. Plaintiff waited until well after the
deadline to amend expired by seeking to amend in response to
Defendants' motion for summary judgment. The scheduling
order specifically warned, “A request for an extension
of a deadline set in this order must be filed on or before
the expiration of the deadline in question and will only be
granted on a showing of good cause.” (ECF No. 41.)
Because Plaintiff did not act with due diligence and fails to
set forth good cause to allow amendment, at this juncture,
Plaintiff's motion must be denied.
Plaintiff met the due diligence standard under Rule 16(b),
Plaintiff's motion to amend must be denied under Rule 15.
Federal Rule of ...