Opinion
No. 2:09-cv-02027-MCE-DAD.
May 3, 2011
ORDER
Having reviewed Plaintiff's Motion for Leave to File Second Amended Complaint (incorrectly docketed as a Motion for Leave to File First Amended Motion to Dismiss"), the Court notes that the Motion's reliance on a liberal standard for amendment, as articulated by Federal Rule of Civil Procedure 15(a) , is improper. Once a district court has filed a pretrial scheduling order pursuant to Rule 16, as this Court did here on February 19, 2010, the standards set forth by Rule 16 control. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).
All further references to "Rule" or "Rules" are to the Federal Rules of Civil Procedure.
"Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s `good cause' standard primarily considers the diligence of the party seeking the amendment." Johnson, 975 F.2d at 609. In explaining this standard, the Ninth Circuit has stated that:
[a] 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 granting of relief. Although the existence or 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 should end.Id. (citations omitted).
Neither Plaintiff, in bringing the instant Motion to Amend, or Defendants, in opposing Plaintiff's request, have discussed the proper Rule 16 standard upon which said Motion must be adjudicated. In order to afford the parties an opportunity to address the correct standard, the presently scheduled May 5, 2011 hearing date for the Motion (ECF No. 95) is hereby continued to May 19, 2011 at 2:00 p.m. Counsel are directed to file simultaneous supplemental briefing on the issue of whether Rule 16's prerequisites have been satisfied not later than May 10, 2011. That briefing shall not exceed ten (10) pages in length. No responsive briefing will be permitted.
IT IS SO ORDERED.