Johnson v. Mcilrath ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT JOHNSON, No. 2:15-cv-00180-MCE-DB 12 Plaintiff, 13 v. ORDER 14 JAY C. MCILRATH, in his individual and representative capacity as 15 Trustee—The Mcilrath Family 2002 Trust, 16 Defendant. 17 18 Through the present action, Plaintiff Scott Johnson seeks damages and injunctive 19 relief against Defendant Jay C. Mcilrath as Trustee of The Mcilrath Family 2002 Trust for 20 violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12213, 21 and California’s Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51. Plaintiff 22 claims he encountered various physical barriers at Defendant’s store in Stockton, 23 California. Plaintiff previously moved for summary judgment, ECF No. 29, in response to 24 which Defendant argued that the Defendant trustee, Jay C. Mcilrath, had passed away 25 and that the proper real party in interest is the Mcilrath Family Limited Partnership, ECF 26 No. 31. 27 Given the foregoing, this Court issued an Order to Show Cause (“OSC”) directing 28 Plaintiff to show cause in writing why this action should not be dismissed for failure to 1 name or substitute the proper party. ECF No. 36. Plaintiff responded to the OSC and 2 Plaintiff filed a Motion for Leave to File a First Amended Complaint. ECF No. 39. 3 Based on the record before it, the Court was able to determine that, if nothing 4 else, Mr. Mcilrath is not a proper Defendant. Accordingly, it discharged the OSC and 5 denied both of Plaintiff’s motions. The Court then directed that Defendant file a notice 6 complying with Federal Rule of Civil Procedure 25 and Plaintiff file a renewed motion to 7 amend the existing complaint. Both sides timely complied, and presently before the 8 Court is Plaintiff’s renewed Motion to Leave to File a First Amended Complaint (ECF 9 No. 44). For the following reasons, that motion is DENIED.1 10 Once a district court has issued a Pretrial Scheduling Order (“PTSO”) pursuant to 11 Federal Rule of Civil Procedure 16, that Rule’s standards control. Johnson v. Mammoth 12 Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Prior to the final pretrial 13 conference in this matter, the Court can modify its PTSO upon a showing of “good 14 cause.” See Fed. R. Civ. P. 16(b). 15 “Unlike Rule 15(a)’s liberal amendment policy, which focuses on the bad faith of 16 the party seeking to interpose an amendment and the prejudice to the opposing party, 17 Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking 18 the amendment.” Johnson, 975 F.2d at 609. In explaining this standard, the Ninth 19 Circuit has stated that: 20 [a] district court may modify the pretrial schedule “if it cannot reasonably be met despite the diligence of the party seeking 21 the extension.” Moreover, carelessness is not compatible with a finding of diligence and offers no reason for granting of relief. 22 Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to 23 deny a motion, the focus of the inquiry is upon the moving party’s reasons for seeking modifications. If that party was not 24 diligent, the inquiry should end. 25 /// 26 1 Given this Court’s disproportionately high case load, and in the interest of conserving judicial 27 resources and expediting a decision in this case, the Court will not recount details with which the parties are intimately familiar. To be clear, the Court has considered all evidence and arguments in the record, 28 but it limits its written decision to only that which is necessary to resolve the parties’ instant arguments. 1 | Id. (citations omitted). Plaintiff has fallen well short of showing the requisite diligence 2 || necessary to justify an order granting leave to amend. Mr. Mcilrath passed away over 3 | three and one half years ago on January 18, 2016, and defense counsel notified 4 | Plaintiff's counsel of his death immediately thereafter. Decl. of Mark Thiel, Ex. B. 5 | Despite having knowledge of Defendant's death for over three years, Plaintiff still 6 | contends that he “has been diligent in seeking amendment after the filing of the 7 | Statement of Death.” Pl.’s Mot. at 4. According to Plaintiff, he “should not be penalized 8 | for waiting until after a Statement of Death was served, as required under the rules, to 9 | pursue amendment.” Id. 10 The Court would agree if Plaintiff could not also himself have filed a Statement of 11 | Death at any time. See Rule 25 (permitting any party to file the statement). The issue is 12 | thus not whether Plaintiff's motion timely followed the formal statement being lodged with 13 | the Court. Instead, the question for instant purposes is whether Plaintiff was diligent in 14 | seeking amendment. He was not. Not only did Plaintiff fail to take any steps to ensure 15 | the proper party was before the Court (e.g., file a Statement of Death, move to amend, 16 | etc.) within the last several years, but he also filed a motion for summary judgment 17 || against a party he knew was deceased. Nothing about this shows the diligence required 18 | by Rule 16.2 Accordingly, for the reasons just stated, Plaintiff's Motion for Leave to File 19 | a First Amended Complaint (ECF No. 44) is DENIED.? Because this action cannot 20 | proceed against a deceased party, it is hereby DISMISSED, and the Clerk of the Court is 21 | directed to close this case. 22 IT |S SO ORDERED. 23 | Dated: September 13, 2019 25 MORRISON C. ENGLAND, J 26 2 The Court has serious questions based on the additional arguments raised by defense counsel as to whether amendment would be futile in any event, but given the forgoing analysis, it need not resolve 27 those questions here. 3 Having determined that oral argument would not be of material assistance, the Court ordered the 28 Motion submitted on the briefs pursuant to Local Rule 230(g).