Opinion
A02-300 CV (JWS), [Re: Motion at Docket 75].
January 23, 2004
ORDER FROM CHAMBERS
I. MOTION PRESENTED
At docket 75, plaintiffs O.H. Sorrels, Jr. and Valerie Sorrels ("Sorrels") move to extend the time provided in the planning and scheduling order for filing motions to amend the pleadings. Defendants oppose the motion which has been fully briefed. Oral argument has not been requested, and it would not assist the court.
II. BACKGROUND
The parties filed a joint scheduling and planning conference report at docket 42. Based thereon, and pursuant to Federal Rule of Civil Procedure 16(b), the court filed a planning and scheduling order on June 23, 2003, at docket 43 ("Rule 16 Order"). The Rule 16 Order set October 10, 2003, as the deadline for amending the pleadings. Neither party sought to extend the time for amending the pleadings prior to October 10, 2003. Plaintiffs' pending motion filed on December 16, 2003, is the first request for an extension of the deadline for filing motions to amend the pleadings.
III. STANDARD OF REVIEW
Plaintiffs adopt the position that their motion should be analyzed under the excusable neglect standard set out in Federal Rule of Civil Procedure 6(b)(2). Defendants contend that a different standard applies, a standard of "good cause." Defendants rely on Federal Rule of Civil Procedure 16(b). Rule 16(b) provides that district courts "shall" issue a scheduling order in a case like the one at bar which, among other things, "limits the time . . . to join other parties and to amend the pleadings. . . ." Furthermore, and of considerable significance, Rule 16(b) explicitly states that "a schedule shall not be modified except upon a showing of good cause. . . ." Tracking the language of Rule 16(b), the Rule 16 Order itself recites that after October 10, 2003, the pleadings may be amended only for "good cause shown."
Doc. 75. FED. R. CIV. P. 6 provides, in part: "When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may . . . (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. . . ."
Doc. 79.
In deciding which standard should be applied to the pending motion, it may first be observed that Rule 6(b), unlike Rule 16(b), is permissive. The former says that a court "may." The latter dictates that the court "shall." Rule 16(b) says the court must establish a schedule which includes a deadline for motions to amend and that deadline must not be altered except upon a showing of good cause. Second, precedent in this circuit leads this court to conclude that Rule 16(b), rather than Rule 6(b)(2), supplies the standard pursuant to which the pending motion must be evaluated.
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir. 1992). The Johnson court said that even if a late motion to amend the complaint had been characterized as a motion to modify the scheduling order, the motion would have been evaluated pursuant to the good cause standard in Rule 16(b).
IV. DISCUSSION
Although referencing the wrong standard, plaintiffs do argue that good cause exists for extending the time to amend pleadings until March 1, 2004. They contend that such an extension won't prejudice defendants and "will not significantly delay progress in this case." The reason, say plaintiffs, is that "the requested extension will impact no other deadlines in this case." In their reply, plaintiffs identify the amendment which they contemplate making on or before March 1: "The amendment that the Sorrels contemplate, and that they have been investigating in all haste and good faith, is whether this case would appropriately be tried as a class action on behalf of all consumers similarly situated to the Sorrels."
Doc. 75 at p. 6.
Id.
Doc. 81 at p. 2.
The court disagrees with the plaintiffs suggestion that an amendment which converted this case to a class action would not substantially impact the schedule already in place. Class action status must be evaluated pursuant to Rule 23. The parties and the court would have to evaluate a number of issues in order to resolve the class action question. First, it would be necessary to consider the facts and law relating to the four prerequisites set out in Rule 23(a). Next, it would be necessary to address the considerations set out in Rule 23(b). Rule 23(c) not only requires that consideration of the matters identified in subsections (a) and (b) be given temporal priority, but time for notice to class members might well be required. Based on its experience with class actions, the court may confidently state that even the most efficient resolution of class certification issues would require abandonment of the existing schedule and a very substantial extension in the time for all of the activities identified in it. In summary, granting the motion would introduce substantial delay.
This would be mandatory if the action were maintained under Rule 23(b)(3). Whether to require notice would be a discretionary decision if the action were maintained under Rule 23(b)(1) or (2). See Rule 23(d).
The extent of prejudice to defendants from such a delay is not clear. However, as defendants argue, a showing of good cause under Rule 16(b) should focus on the moving party's reasons for seeking an amendment to the order rather than on prejudice to the non-moving party. Here, the only reason offered by plaintiffs is that they were busy with matters concerning the status of defendant Fortis and defendants' motion to compel arbitration. However, plaintiffs are represented by competent counsel in a firm which has several good lawyers. Attorneys competent to represent plaintiffs in a class action are certainly competent to address multiple tasks at the same time.
Johnson, 975 F.2d at 609.
Doc. 75 at p. 7.
Finally, there is no prejudice to plaintiffs from denying them a chance to seek an opportunity to appear as class representatives. The amount claimed by plaintiffs exceeds $75,000. If something less than a princely sum these days, such an amount is still significant to most people, and it was deemed sufficient by plaintiffs and their counsel to warrant commencing litigation. Moreover, functioning as class representatives, even if successful, would not enlarge plaintiffs' own recovery.
See order at docket 29.
Taking all of the above into consideration, the court concludes that plaintiffs have not shown good cause why the court should extend an October 10, 2003 deadline — a deadline which passed two months prior to their motion — until March 1, 2004.
V. CONCLUSION
For the reasons set out above, the motion at docket 75 is DENIED.